*șĘ,
.*：،· -№. :） &
ģ！~·
· →*·-
§§§§-→

7
ºf TºyºA.U.ſ.º.) .I’ſſ. Tº J'. D. º M. J. J. J. J. J. I
i
ºº--
& LIBRARY OF .
|ºil Lawrence B.Evans'ſ
$ 3, PH.B.
__CLAss of 1894.
i
i:- Kº tº ...,'A' -
#|||||||||||||||||||||||||||W2(ŠirºVIII ſºlſ|||||||||||ſ||
sº ſº: ºšimº # ſº
E A Sºl . bºº #
É #
E E
E ; :=
É E
É : E
É #
# := 23
Nº. := e--- *
º ; :
ſ :S ... , - - s: #
| . . X & > -º-º: ºf . S. & Sº :E
ES º E
E. E
#
#
#
– *—-----——— — — fºLº º L
#TTTTTTTTIIIHIIIITſºlſ|IIIHIIIHIIITIII #
iºn
|||||||||||||||||||||||||||||=
Hill|||||||||||||||||||||||
i
THE GIFT OF
GRACE LAND ABBY L. SARGENT
iſſ































TO
THE BEIN C H AND BAR
OF
wit ºutitru =tates,
THESE VOLUMES ARE RESPECTFULLY INSCRIBED,
BY
THE EDITOR.
Ž, af - &c. & Cº-cººl-4 Č */ 236 caea...)
REPORTS
CAS E S D E CID ED
HONOURABLE JOHN MARSHALL, was ºr
LATE CHIEF JUSTICE of THE UNITED STATEs,
IN
cut circuit court of the vinited states,
FOIR. THE
DISTRICT OF VIRGINIA AND NORTH CAROLINA,
FROM 1802 TO 1833 INCLUSIVE.
EDITED BY
JOHN W. BROCKENBROUGH,
- couTNSELLOR AT LAW. \ -
IN TWO VOLUMES.
V O L. I.
PHILADELPHIA : -
JAMES KAY, JUN. & BROTHER, 122 CHESTNUT STREET.
PITTSBURGH : JOHN I. KAY & CO.
1837.
ENTERED according to the Act of Congress, in the year 1837, by John W.
Brockenbrough, in the Clerk’s Office of the District Court of the United States in
and for the Eastern District of Pennsylvania.
yº - -
%.” & Ž, 4 & al...,
3. 2A. 3% &A
3 v .
PR EF A C E .
IN presenting the following volumes to the members of the
Bench and Bar of the United States, the Editor deems it but
an act of simple justice to himself, to state that the task of
editing them, in a suitable manner, was beset with many and
unusual difficulties: so formidable, indeed, were these difficulties
deemed by some, whose opinions had every claim to a respectful
consideration, that it was confidently predicted that the attempt
would finally be abandoned in despair. Where the Reporter has
the advantage of hearing the arguments of counsel in a cause,
it is, comparatively, an easy task to present a report of it exact,
full, and, in all respects, satisfactory. The record, containing
all the evidence and pleadings in the cause, and from which he
is to prepare his statement, is before him : the authorities which
bear upon the points, arising in it, are all collected by the
researches of counsel : and while the arguments at the Bar, and
the views of the Court are yet fresh in his recollection, he retires
to his closet, and with these ample materials before him, he is
enabled, with little labour, to prepare a report, which, with
entire confidence, he sends forth to the world, to encounter, and
to challenge the enlightened and searching criticism of the
Profession. To the Editor, in the present instance, however, all
these important aids were denied. By far the greater portion
of the opinions, published in these volumes, came to his hands
many years after they were delivered from the bench. No
notes of the arguments were preserved by the late Chief
Justice, in a single instance; and where the necessity of pre-
vi PREFACE.
senting a full statement of the material facts in a cause, was
not dispensed with by its being incorporated in the opinion itself,
no alternative remained, but to publish the bare opinion of the
Court, unaccompanied by the facts, essential to its elucidation,
or, by patient and laborious investigation of the papers in the
cause, which were, for the most part, extremely voluminous,
to extract from them, a narrative of the facts, which constituted
the basis of the opinion. To have taken the course first indi-
cated, would have been an act of inexcusable injustice to the
character of the eminent individual who had pronounced the
opinions, to the Profession, and to the Editor himself. In such
a state of things, it was impossible not to yield to the considera-
tions which so sternly demanded, at the hands of the Editor, the
dedication of his time and labour, to the important work which
he had undertaken : and the course which these considerations
required, was adopted, without hesitation, and has been perse-
vered in, without faultering, for years. - - -
The Editor trusts, that these remarks will not be imputed to
an unmanly wish, to exaggerate the labours and the obstacles
he has encountered, or with any view to disarm the criticism of
the learned Profession, to whom they are addressed. The task,
such as it was, was voluntarily assumed: and full well he knows,
that it would be worse than idle to invoke the indulgence of
those, by whose judgment the work now offered must stand or
fall, to such of its imperfections as can, in fairness, be ascribed
to the remissness, or incompetency of the Reporter. But he
also feels the strongest assurance, that in pronouncing a candid
judgment on the result of his labours, they will not hesitate to
attach their due weight, (and he asks nothing more,) to the
untoward circumstances which he has detailed.
The causes in which the opinions now published were deli-
vered, were, generally speaking, of unusual complexity and
difficulty. This remark is especially applicable to the Equity
PREFACE. vii
decisions, which constitute a very large proportion of the entire
work. It was, indeed, the practice of the late Chief Justice,
to commit his opinions to writing, only in cases of real difficulty :
and the fact, that all the opinions contained in these volumes,
were written by Chief Justice Marshall, with his own hand,
and were carefully preserved by him, furnishes an ample gua-
rantee of their intrinsic value and importance. They are,
indeed, altogether worthy of the exalted fame of the venerable
Judge, who, for so many years, adorned the highest judicial
station in our country. w
The earnest desire felt by the Editor to render these volumes
as extensively useful and convenient to the Profession, as
possible, suggested to him the propriety of embodying, in the
form of notes, copious references to parallel cases decided in
the highest courts, both in the United States and in England:
and, especially, to such as were of a more recent date, than the
opinions to which they should be annexed, respectively. This
part of a plan, not originally contemplated, has also been carried
into execution; and the Editor flatters himself that these notes
will be found to constitute a valuable addition to the work, par-
ticularly to gentlemen of the Profession residing in the country,
and who are precluded, by their situation, from having access to
extensive and well selected libraries. *
Two of the following cases are republished from the sixth
volume of Mr. Call’s Reports. Their republication in these
volumes was demanded, not only by their intrinsic value, but
by the importance of preserving, as far as it was possible, an
unbroken series of the decisions of Chief Justice Marshall, in
the Circuit Court of the United States, during the whole period
of his judicial life. Two important cases, decided in the same
Côurt since the death of Chief Justice Marshall, are also added.
ERRATA IN WOL. I.
Page 144, line 4, of note, Gregory v. Baugh, 4 Rand. 327, is cited: for 327,
read 636. f -
In clause 4 of syllabus, Dixon et al. v. United States, page 177, it is stated
as a deduction from the reasoning of the Chief Justice, in that case, that an em-
bargo bond, executed while the embargo laws were in force, but departing so ma-
terially from the requisitions of those laws, as to render it void as a statutory
bond, would still be binding, as a common law bond. This is a mistake. Such
a bond was held not to be valid as a common law bond, as there was no criterion,
by which damages were to be ascertained.
Page 203, line 3, for “Hon. St. George Tucker,” read “Hon. John Tyler.”
Page 357, line 13, for “the acquiescence in her possession,” read “her ac-
quiescence in the possession.” \
MEMIO IR
O. E.
J O H N M A R S H A L L,
BY
JOSEPH HOPKINSON.
READ ON THE THIRD DAY OF MARCH, 1837, To THE “AMERICAN PHILo-
soPHICAI, society.”
THE delay which has taken place in the performance of the
duty, with which the Society has honoured me, has been occa-
sioned by various considerations which it is unnecessary now
to explain. I need not assure you, that none of them will be
found in an indifference to the appointment, and much less to
the illustrious subject of it. The interest, the attention, which
that commands, will not be impaired by the delay. There
* The following brief sketch of the life, character, and services of the late Chief
Justice Marshall, from the pen of a ripe and accomplished scholar, is now offered
as an appropriate introduction to these volumes.
It was, perhaps, inseparable from the preparation of such a memoir, that it
should be tinged, in some degree, with the political opinions of the author, and it
was also fit that the task of executing it should have devolved on one, who was
not only eminently qualified for it in other respects, but whose political opinions
fully accorded with those entertained, with remarkable consistency, and enforced
with singular power, by the late Chief Justice of the United States. To that por-
tion of the following paper which discusses the grave and, as some suppose, the
very debatable question of the nature and scope of the powers conferred on the
Supreme Court by the Constitution of the United States, the editor does not
deem it proper, in this place, to express either approbation or dissent; but has
chosen to present it, unmutilated and unaltered, as it came from the hands of
Judge Hopkinson.—[Editor.]
Vol. I.- C -
X MEMOIR OF JOHN MARSHALL.
is nothing transient in the character and services of Chief Justice
Marshall ; nothing to be lost or forgotten in the lapse of months
or years; nothing that time and reflection will not confirm and
consecrate. They are inseparably connected with the institu-
tions of our country; with its character and destinies. You
will recognize and feel them now, as fully and freshly as on the
day of his death. -
While it is the pride of our society to enrol on its list of
members, the most distinguished and honoured citizens of our
great republic, it is a consequence of this gratification that we are
called upon, from time to time, to record also their death, and to
lament the loss of their labours and virtues, of their lessons and
example. Illustrated as our roll is with the names of the great
and good, of the learned and wise, there is none that can claim
pre-eminence over John Marshall. This great man, truly and em-
phatically so, was born in Virginia, in the county of Fauquier,
in the month of September 1755. During his boyhood and
youth, this county was frontier territory, with a scattered and
rude population, and the means of obtaining even an ordinary
education, exceedingly imperfect and uncertain. Notwithstand-
ing this disadvantage, the talents of young Marshall developed
themselves at a very early age. He exhibited, as we are in-
formed by one of his dearest friends and most eloquent eulogists,
a decided taste for English literature, and especially poetry and
history. It is worthy of observation that a mind of such solid
structure, of such capacities for profonnd and abstruse researches,
of such gigantic powers, should first have attached itself to poe-
try. “He was enamoured,” says the friend alluded to, “ of the
classical writers of the old English school of Milton and Shak-
speare, Dryden and Pope.” Even here his superiority appears.
What a noble selection of masters? Here we had some assur-
ance of the future man. He took his lessons of literature from
deep and pure sources; his teachers were the princes and nobles
of the art, who stand on pedestals of adamant with admiring
ages rolling at their feet. How unlike the sickly, ephemeral, false,
and impure models to which the young readers, (and some old
ones,) of the present day devote themselves, corrupting their
taste, debilitating their judgment, and touching their morals with
f
MEMOIR OF JOHN MARSHALL. xi
dangerous principles and irregular passions! Some of these
literati, know little more than the names of Milton and Shak-
speare, Dryden and Pope, and are ignorant even of the names
of some of the most illustrious poets of our language.
This occasion will not suffice for tracing the progress of John
Marshall from infancy to manhood. When he reached the age
of twenty years, the struggle of his country against foreign op-
pression had assumed a serious and decided shape. “We must
fight”—said an intrepid patriot of the east. “We must fight,”
was the response of the brave and true spirits of the south. The
animating call struck on the heart of Marshall, and electrified the
whole man. The course of his education, the charms of litera-
ture, retirement, and study were abandoned; and he betook him-
self to the field of mortal strife, where the victory was to be
won, and his country saved, by strong arms and stout hearts. In
the summer of 1775, he received a commission of lieutenant of
a company of minute men, and was shortly after engaged in
battle. He was in the severe and sanguinary conflicts of Bran-
dywine, Germantown, and Monmouth. Does not this remind
us of the best days of Greece and Rome, when their statesmen,
their orators, poets and historians, however eminent, encount-
ered the dangers and sufferings of the battle field on the call of
their country. Yet we cannot but shrink and shudder to see
such a life as that of John Marshall, placed in the balance against
some hireling soldier, whose existence is of no value, and who
is probably well paid for all the hazard to which he exposes it,
by his shilling or six pence a day. But it was the cause, it was
his country that demanded the sacrifice, by whatever hand he
might fall. Thank heaven, he was reserved for higher and more
essential services to that country. In the midst however of the
stirring scenes of war, Mr. Marshall must have found some
means and opportunities for study, for in 1780, he obtained his
license to practice law. He then returned to the army, and
continued in it to the termination of the contest. After this
period his fellow-citizens seem to have understood the value of
his character and talents, and to have taken possession of them.
The people, until they become bewildered and maddened by
the delusions and passions of party, are not blind to such gifts,
xii MEMOIR OF JOHN MARSHALL.
}
nor to the worth of such men. Mr. Marshall, soon after the
peace, was a member of the legislature of Virginia, and of the
executive council of the state. In 1788, he was elected a repre-
sentative of the city of Richmond, in the state legislature, and
so continued until 1791. At this time he returned to his pro-
fessional labours; but in 1795, he was again induced to take a
seat in the legislative hall. He was offered by President Wash-
ington, the office of attorney general of the United States, which
he declined ; he withstood the solicitation of the same presi-
dent to accept the appointment of minister to France, upon the
recall of Mr. Monroe. In 1797, Mr. Marshall, yielding his
private interests and decided inclination to the public service,
accepted from president Adams, the place of one of the envoys
to the court of France. The papers written on our behalf, and
addressed to the French ministers, in the discussions of the
grave and important subjects of the controversy between the two
countries, have not been overlooked or forgotten by those who
have taken an interest in the history of the United States, at
that embarrassing and perilous period. These documents are
enduring monuments of the talents, knowledge, patriotism, and
prudence, of Mr. Marshall, to whom the preparation of them
was confided. Clear and impregnable in his principles of na-
tional law, faithful and firm to the rights of his country, he
vindicated her claims with a sagacity and discretion, which gave
no advantage to the adversary in the manner more than in the
matter, of the dispute. On his return from this mission, he re-
sumed his professional duties. In 1799, he was elected to con-
gress. At this moment, he was offered a seat on the bench of
the Supreme Court of the United States, but did not accept it.
The time which the society may allot to me on this occasion,
and which I fear I shall extend beyond my right, will not admit
even of a cursory, exhibition of the independent and brilliant
career of Mr. Marshall in the legislature of the Union. His
speech on the case of Jonathan Robbins, will never be forgotton
or surpassed. It is a perfect model of argumentative eloquence.
No attempt was made to reply to it. It could be assailed at no
point. It was not possible to bring contradiction or doubt upon
it; there was an end of the question. In 1800, Mr. Marshall
MEMOIR OF JOHN MARSHALL. xiii
was appointed secretary of war, and very soon afterwards secre-
tary of state, which place he held but for a short time.
We have now arrived at the period of Mr. Marshall’s life
which was to enlarge the foundations of his reputation, and give
it an imperishable solidity. On the 31st day of January, 1801,
an auspicious day for our country, John Marshall was appointed,
by President Adams, Chief Justice of the United States. If our
Constitution is dear to us, if we should cherish the form and
principles of a government suitable for a free and intelligent
people, we should bless the day when it became the right and
duty of this great and pure man to develope, define, and esta-
blish, the true and fundamental powers and character of our
incomparable government, incomparable only when understood
and administered by the principles which, from time to time, as
occasions required, the Chief Justice, aided and sustained by
his learned associates, has applied to its provisions ; thus be-
coming part of itself, and necessary to its healthful, durable, and
consistent action. Of the value of his clear, discriminating,
and vigorous intellect ; of his immaculate and independent
integrity; of his comprehensive, but regulated views; of his
cool and firm judgment in the exercise of his high powers, as the
interpreter of the Constitution and the law, and the adminis-
trator of justice, by and according to them, and them only,
every one will truly judge, who can justly estimate the import-
ance of the department of the government of which he was the
head. The judiciary is the protecting, conservative power, not
only of the rights of every citizen, but of the Union. It keeps
every member of it in its right place, to the use of its proper
functions, and no more. It compels each orb, the great as well
as the small, to move in its prescribed sphere, and brings the
wanderer back. It restrains the ambition and power of the
strong, and defends and secures the rights of the weak. Should
New York, with her two or three millions of citizens, and
Rhode Island, with her few thousands, appear as adversary
suitors, before this august tribunal, the one is no longer great
and strong, her power is not seen or felt, nor the other feeble and
small. Their territory is not measured, their numbers are not
counted ; their rights only are known and considered. The
xiv. MEMOIR OF JOHN MARSHALL.
Constitution and the law decide the question between them ; and
both are equally bound to submit to the award. To this court,
then, is committed the harmony of the Union; the rights of
states and citizens; the perpetuity of our government. The
errors of the executive seldom reach beyond some single,
immediate object : they are transient, and may be remedied
without any ruinous shock to the great interests of the commu-
nity. The legislature may promptly recal an inadvertent or
impolitic act; but the decrees of the judiciary are written on
brass; they are the enduring laws of the land, as binding as the
Constitution itself. Rights become incorporated with, and
founded on, them, which may not be shaken without disturbing
and weakening every right. For this high trust, John Marshall,
above all men, was constituted by every quality and acquire-
ment necessary for its pure and perfect administration. Pardon
me if, on this theme, I have enlarged too much. It is my
solemn conviction, that it is a theme which should engage the
deep and constant attention of every American. There is no
safety for any right you enjoy, without an upright, learned, and
independent judiciary ; there is safety for every thing, and
under all circumstances, while the judiciary is preserved, com-
petent in knowledge, fearless in integrity, faithful to the Con-
stitution, steadfast in principles, and firm in public confidence.
Having no connexion with, or dependence on, the changes of
parties and men, it is raised above the rough storms and fitful
currents which agitate and befoul the lower atmosphere of
politics and politicians. If it shall ever happen that changes on
the bench are to change and unsettle fundamental principles
of constitutional law ; if new judges are to bring with them
new doctrines, then the decrees of the court will be as vacilla-
ting as the votes of a popular assembly, and confidence and
security will attend them no longer. The Constitution will
become a moving body of sand—a quicksand where no firm
footing can be found—instead of a rock on which we may build
and rest, without fear, for ages. -
How transcendant in power and dignity is this tribunal It
is the concentrated force of the whole republic. There is
nothing on earth like it. Its arms embrace the extremities of
MEMOIR OF JOHN MARSHALL. XV
this vast empire; its voice is heard and obeyed in its remotest
parts. Proud, powerful, and sovereign states submit to its
decrees, and the assembled representatives of sixteen millions
of freemen may stand rebuked before it. There is truly nothing
on earth like it.
“The honoured gods
Keep Rome in safety, and the chairs of justice
Supply with worthy men.”
The judicial services of Chief Justice Marshall are recorded
where they must remain undefaced, while the government and
its institutions, which they have illustrated and invigorated,
shall continue to exist. May they be perpetual The people
will be secure and happy under them, if they will learn the
difficult and rare lesson, to “know their own happiness.” In
his political creed, the Chief Justice was a disciple, or rather an
eminent teacher, of the Washington and Hamilton school. In
that faith he lived and died, having found, it is presumed,
nothing that he thought better.
While the lawyer will review the judicial life of John Mar-
shall, with admiration of his learned sagacity and profound
judgment; of his wonderful powers of illustration and analysis;
and remember with affection his encouraging and amiable de-
portment to the most humble advocate ; while the statesman
will reverence his clear and expansive views, and his unerring
comprehension of cardinal principles; we must contemplate him,
also, as a philosopher, and a man, and look to his more private
virtues and accomplishments. He was an illustrious example of
the truth, that simplicity is of the essence of greatness. It is
so in man, in the arts, in every thing. He showed us, that
domestic virtues and habits, in their most simple and amiable
forms, may accompany and adorn the most powerful intellects,
and exalted genius. Who excelled him as a husband and a
father, as a kind, generous, and considerate friend ? Whose
cheerfulness was more unaffected and exhilirating 2 For more
than twenty years, I enjoyed the personal acquaintance, I may
say, the friendly regard of the Chief Justice. I have seen him
in public and in private, on the bench of justice, and in the
xvi MEMOIR OF JOHN MARSHALL.
more endearing courtesies of social intercourse. In such mo-
ments, he was as playful as a boy. He was not afraid that his
dignity would suffer, by the indulgence of a natural gaiety of
temper. He was a hearty laugher, and caught and enjoyed a
joke, beyond any other man I have known. It was delightful
to see that leviathan intellect, sporting with the playfulness of a
child ; indulging in the light and amiable charities of life;
enjoying to his heart’s core, its innocent amusements; taking
an interest in its ordinary concerns, and mixing, without
reserve, in the humours of the company, and the hour. This
was a spectacle more rare, than the display of superior talents,
and extraordinary attainments. This is to be truly a great
man. I have seen him, listening eagerly to a pleasant story;
catching with intense attention, every point and turn, and
giving, from time to time, note of enjoyment in unrestrained
bursts of hilarity. He made it no part of his dignity and self-
respect, to wrap himself in a solemn reserve ; to play the “Sir
Oracle;” to affect to be above the common feelings and excite-
ments of his fellow-beings; to look with a cold and supercilious
brow upon the occupations, interests, and pleasures of inferior
men. I have seen his dark and penetrating eye, sparkle and
flash with delight, at the recital of some anecdote of poignant
and exciting humour. Lord Wellesley, in his account of the
character and habits of William Pitt, says, that “he seemed
unconscious of his superiority ;” that he “plunged heedlessly
into the mirth of the hour,” and was endowed with “a gay
heart and social spirit, beyond any man of his time.”
But was not Chief Justice Marshall, a philosopher in the
highest and best sense of the term? The character of his mind,
was that of deep reflection, and close reasoning. He sought
truth in great principles, and not in accidental circumstances, or
the authority of names. Having found the principle, he brought
it to the case before him, by a train of deductions, which it was
impossible, to separate, terminating in the conclusion, with the
most perfect conviction of its truth. He was, injurisprudence,
such a philosopher, as Sir Humphrey Davy was in chemistry.
He never experimented at random, trusting to chance for a dis-
covery. His object, and the means by which he sought, and
MEMOIR OF JOHN MARSHALL. xvii
expected to attain it, were philosophical, precise, and consecu-
tive. He settled his principles, as the platform of his operations,
and worked on them, step by step, until by, and through them,
he reached the desired end. It was well observed to me, that
there is philosophy in the judicial opinions of the Chief Justice,
the philosophy of reasoning, of making clear and accurate de-
ductions, from solid and established premises. This is, assuredly,
a philosophy more useful and rare, than the impracticable theo-
ries, and wild visions, which are often called so.
On the 6th day of July, 1835, in this city of Philadelphia,
John MARSHALL died—with the same serenity in which he
lived— - -
“Like one who wraps the drapery of his couch
About him; and lies down to pleasant dreams.”
AT a meeting of the Judge, the Members of the Bar, and the Officers of the
Circuit Court of the United States, for the Eastern District of Virginia, held in
the court-room, in the city of Richmond, on the 23d November, 1835,
The Honourable PHILIP PENDLETon BAR Bourt, was called to the chair, and
Mr. HENRY GIB son, Clerk of the Circuit Court, was appointed secretary to the
meeting. -
The following preamble and resolutions were proposed by B. W. LEIGH, Esq.,
and were unanimously adopted.
John MARSHALL, late Chief Justice of the United States, having departed
this life since the last Term of the Federal Circuit Court for this district, the
Bench, Bar, and Officers of the Court, assembled at the present Term, embrace
the first opportunity to express their profound and heartfelt respect for the memory
of the venerable judge, who presided in this Court for thirty-five years, with
such remarkable diligence in office, that, until he was disabled by the disease
which removed him from life, he was never known to be absent from the bench,
during term time, even for a day,+with such indulgence to counsel and suitors,
that every body’s convenience was consulted, but his own, with a dignity, sus-
tained without effort, and, apparently, without care to sustain it, to which all men
were solicitous to pay due respect, with such profound sagacity, such quick
Vol. I.-D
xviii MEMOIR OF JOHN MARSHALL.
&
penetration, such acuteness, clearness, strength, and comprehension of mind,
that in his hands, the most complicated causes were plain, the weightiest and
most difficult, easy and light, with such striking impartiality and justice, and a
judgment so sure, as to inspire universal confidence, so that few appeals were
ever taken from his decisions, during his long administration of justice in this
Court, and those only in cases where he himself expressed doubt,-with such
modesty, that he seemed wholly unconscious of his own gigantic powers, with
such equanimity, such benignity of temper, such amenity of manners, that not
only none of the judges, who sat with him on the bench, but no member of the
bar, no officer of the court, no juror, no witness, no suitor, in a single instance,
ever found or imagined, in any thing said or done, or omitted by him, the slightest
cause of offence.
His private life was worthy of the exalted character he sustained in public
station. The unaffected simplicity of his manners; the spotless purity of his
morals; his social, gentle, cheerful disposition; his habitual self-denial, and
boundless generosity towards others; the strength and constancy of his attach-
ments; his kindness to his friends and neighbours; his exemplary conduct in the
relations of son, brother, husband, father; his numerous charities; his benevo-
lence towards all men, and his ever active beneficence ; these amiable qualities
shone so conspicuously in him, throughout his life, that, highly as he was re-
spected, he had the rare happiness to be yet more beloved.
He was, indeed, a bright example of that true wisdom, which consists in the
union of the greatest ability, and the greatest virtue.
Resolved, That in addition to the reasons common to us, with the whole
people of the United States, we have peculiar cause to regret the loss of this wise
and just magistrate, and great and good man.
Resolved, That for the purpose of rendering merited honour to his memory,
and of perpetuating, as far as it is possible to perpetuate, this expression of our
sentiments of love and veneration for the judge, and the man, the Circuit Court
be requested to enter these proceedings on its records.
And that the chairman and secretary of this meeting, be requested to commu-
nicate the same to his family.
P. P. BARBOUR, CHAIRMAN.
HENRY GIB son, Secretary.
T A B L E
C A S E S R E POR T E D IN WO L. I.
ADVENTURE, Case of the, 235.
Alston et al., Executors of Mutter v. Munford et al., 266.
Anderson & Wilkins v. Tompkins et al., 456.
Backhouse’s Administrators v. Jett’s Administrators et al., 500.
Blane v. Drummond, 62.
Bond v. Mewburn et al., 316.
Brydie's Executor v. Miller, Hart & Co. et al., 147.
Calloway, Surviving Partner, &c. v. Dobson’s Adm’rs., 119.
Caroline, Case of the, 384. - -
Coates’s Executrix v. Muse’s Administrators et al., 529. 539.
552. - f
Corbet et al. v. Johnson’s Heirs et al., 77.
Dixon et al. v. United States, 177.
Dunbar v. Miller, Hart & Co., 85.
Evans v. Jordan & Morehead, 248.
Fortuna, Case of the, 299.
Gallego, Richard & Co. v. United States, 439.
Hopkirk, Surviving Partner, &c. v. Miconico et al., 220.
Jacob v. United States, 520.
xx TABLE OF CASES REPORTED.
Letcher & Arnold v. Woodson, 212.
Livingston v. Jefferson, 203.
M“Call, Smilie & Co. v. Harrison et al., 126.
Meade v. Deputy Marshal, 324.
Murdock, Donald & Co. v. Shackelford's Heirs, 131.
Murdock & Co. v. Hunter’s Representatives, 135.
Owen v. Adams, Surviving Partner of Hunt & Adams, 72.
Patriot, Case of the, 407.
Pegram v. United States, 261.
Prentiss, Trustee of Prentiss v. Barton’s Executors, 389.
Robertson v. Miller et al., 466.
Ronald’s Heirs v. Barkley et al., 356.
Santissima Trinidad and St. Ander, Case of the, 478.
Scott v. Jones, 244. -
Scriba, Scroppal & Sturman v. Deanes et al., 166.
Selden v. Hendrickson & Pryor, 396. -
Shore’s Executor v. Jones et al., 285.
Short v. Skipwith, 103.
Strode v. Stafford Justices, 162.
Strodes v. Patton et al., 228.
Tabb’s Administrators v. Gist et al., 33.
Thomas & Henry, Case of the, 367.
United States v. , 195.
United States v. Feely, &c., 255.
United States v. Gordon & Shepherd, 190.
United States v. Hill et al., 156.
United States v. Jones et al. 285.
United States v. Schooner Little Charles, 347. 380.
25
United States v. P. T. Shelton & Co. 517.
Waddington v. Banks et al., 97.
Wilson v. Le Roy, Bayard & MºIver, 447.
Wilson, Case of the, 423.
Wormeley et al. v. Wormeley et al., 230.
T A B L E
OF
C As Es CITED IN V O L. I.
Abercrombie v. Dupuis et al., 1 Cranch
Beatty v. Smith et al., 1 Munf. 41 276
Bennett v. Maule, Gilmer 328 page 224
Bethel v. Stanhope, Cro. Eliz. 810 508
Blight's lessee v. Rochester, 7 Wheat.
535 . . . . 4.76
Blow v. Maynard, 2 Leigh 29 5] 6
Blydenburgh & Burns v. Welsh, I
Bald. Rep. 331 , . 219
Breedlove et al. v. Nicolet et al., 7 Pe-
ters's Rep. 413 . e . 476
Bricknold v. Owen, Dyer 208 a. 281
Buchanans v. Curry, 19 Johns. Rep.
137 . . . . . 465
Buckner &c. v. Smith, I Washington
296 o e © e . 246
Bullitt's Executors v. Winstons, 1
Munf. 269 . ty © . 225
Burton v. Toon, Skinn. 639 . 143
Burwell’s Executor v. Anderson’s Ad-
ministrator, 3 Leigh 348. . 506
Caledonian, Case of the, 4 Wheat.
100 . . . . . . 450
Carneal v, Banks, 10 Wheat. 181 476
Carver v. Astor, 4 Peters’ Rep. I 476
Caster v. Wood, 1 Bald. Rep. 289 124
Cecil v. Earl of Salisbury, 2 Verm.
343 . . . page 392
Adam and wife v. Kerr, 1 Bos. & Pul.
360 o r 142
AEolus, Case of the, 3 Wheat. 395 414
Aldrich v. Cooper, 8 Wesey 382. 279
Allen's Executor v. Carr, 3 Leigh
407 e © & º , 506
Amiable Nancy, 3 Wheat. 546 . 219
Anderson, &c. v. Fox, &c. 2 H. & M.
260. e e e © . 505
Angel v. The Commonwealth, 2 Wa.
Cases 231 389
Ariadne, Case of the, 2 Wheat. 143 450
Armstrong v. United States, Peters C.
C. R. 46. e º © . 202
Atwell’s Administrators v. Milton, 4 H.
& M. 253 . tº tº . 505
Aurora, Case of the, I Wheat. 96 399,
405
Aurora, Case of the, 8 Cranch 203 450
Austin v. Halsey, 6 Vesey 475 . 280
Bailey v. Greenleaf, 7 Wheat. 46 101
Bailey v. Jackson, 16 Johns. Reports
210 . º o º . 138
Baird v. Rice, 1 Call 18 - 225
Baird v. Bland et al., 5 Munſ. 492 514
Bank of U. S. v. Smith, 11 Wheat.
171 e e a e 527
Barnes v. Trompowsky, 7 Durnf. & E.
266 . . º 142
Barr v. Gratz, 4 Wheat. 231 144
Barton v. Pettit & Bayard, 7 Cranch
206 • e s º , 263
Chirac v. Chirac, 2 wheat. 259 º
224. º tº e e . 363
Chambers et al. v. Harvest et al., Mose-
ley 124 o º e . 514
Cheesebrough v. Millard, 1 Johns. Ch.
Rep.409 © e . 279
476
Clerk v. Bedford, Buller’s N. P. 282 74
Cole v. Pennell, 2 Rand 174 . .276
xxii
TABLE OF CASES CITED.
Gordons, Case of the, Leach's Cr. Law
/
Galton v. Hancock;2 Atk. 436 page 279
Garland v. Richeson, 4 Rand 266 65
Garnett v. Macon et al., 2 Brocken-
brough's Rep. 185. e , 343
Genet v. Tallmadge, 1 Johns. Ch. Rep.
3 . º º '• tº . 227
George, Case of the, 1 Mason 24 450
Gilliam's Administrator v. Perkinson's
Administrator, 4 Rand. 327 . 144
Gilpin v. Consequa, I Peters’ C. C. R.
85 º e º e . 219
Gordon v. Frazier, 2 Wash. 130 276
515 • , e. tº . 528
Grange, Case of the, 2 Marsh. Life of
Washington 262, rev. ed. 498
Gregory v. Baugh, 4 Rand 636 - 144
Griswold v. Waddington, 15 Johns.
Rep. 57 . . . . 450
Groves v. Graves, I Wash. Rep. I 109
Commonwealth v. Martia's Ex’ors. &c.,
5 Munf. 117 . © º
Cooper v. Thornton, 3 Bro. Ch. Rep.
96 . 227.
Cooper’s Lessee v. Galbraith, 3 Wash.
C. C. R. 546 . e e . 395
Coppin v. Coppin, 2 P. Wms. 221 280
Corbet et al. v. Johnson’s Heirs, 1
Brockenbrough’s Rep. 77. 145
Coulson v. Walton et al., 9 Peters
62 . . . . . 144
Craig v. Lesslie et al., 3 Wheaton
563 . . . . . . 476
Craig et al. v. Redford, 3 Wºt. 594 476
Crawford v. The William Penn, 3
Wash. C. C. R. 484 405
Croughton v. Duval, 3 Call 69 . .224
Cunliffe v. Sefton, 2 East 183 143
Cunyngham v. Cunyngham, Ambler
89 e º • * . 537
Dagley v. Tolferry, 1 P. Wms. 285 227
Davies v. Top, 1 Bro. Ch. Rep. 524 512
Dawson's Lessee v. Godfrey, 4 Cranch
32 I. e º e (s . 476
Deloney v. Hutcheson et al., 2 Rand
183 & e e . 463
Doe dem Gouverneur’s Heirs v. Robert-
son et al., 11 Wheat. 332 476
Dolden v. The Bank of England, 10.
Vesey 284.
Doulson v. Matthews, 4 Durnf. & E.
503 • º tº e . 210
Duncombe v. Hansley, 3 P. Wms.
333 . . . . . 83
Dunlap & Co. v. Ball, 2 Cranch
180 . e - G e . 138
Duval v. Bibb. 4 H. & Munf. 113 102
D“Wolf v. Rabaud et al., 1 Peters
498 º 396
Edwards v. Harben, 2 Durnf. & E.
587 º º e 510, 516
Elliott’s Executor v. Smock, I Wash.
389 . . . . . 246
Eppes v. Randolph, 2 Call 125 171,273
Evans v. Jordan & Morehead, 9 Cranch
199 e º • • . 255
Exchange, Case of the, 7 Cranch
116 e ve e & . 497
Fairfax's devisees v. Hunter's Lessee, 7
Cranch. 603 . º ſº . 476
Finch v. Earl of Winchelsea, 3 P.
Wms. 399 . e º . 281
Fortuna, Case of the, 2 Wheat. 161
and 3 Wheat. 236. o 315
page 476.
Hopkins v. Lee, 6 Wheat. 109 .
Halley v. Baird, 1 Hen & M. 25 276
Halliday v. Martinet, 20 Johns. Rep.
168 wº e o © . 75
Hamilton v. Worley, 2 Vesey, Jr.
62 tº e º º . 83
Hamilton v. Gee and wife, 6 Munf.
32 . . . . . 276
Harper et al. v. New Brig, Gilpin
536 {- e . 404
Harrison v. Sterry, 5 Cranch 289 65
Harrison et al. v. Nixon, 9 Peters
503 © e e o . 66
Harrison v. Jackson et al., 7 D. & East
207 - 462
Harvey v. Richards, 1 Mason 408 66
Hawes v. Leader, 3 Croke's Reports
270 º e º º . 510
Haydon v. Goode, 4 Hen. & Munf.
460 º e e . . .279
Headly v. Readhead, Cooper’s Reports
50 e - © e e . 280
Hedges and wife v. Riker et al., 5 Johns.
Ch. Rep. 163 © e . 363
Henry v. Brown, 19 Johns. Reports
49 * e e e . 246
Hepburn & Dundass v. Ellzry, 2
Cranch 445 & & . 390
Hepburn et al. v. Dunlap et al., 1
Wheat. 197 . e . 476
Hill v. Bull, Gilmer 149 . . 224
Hiram, Case of the, 8 Cranch 444, and
1 Wheat. 440 • . . 450
219
Hoppet, Case of the, 7 Cranch 389 350
Houston v. Moore, 5 Wheat. 1 328
Hubbard v. Goodwin, 3 Leigh 492 476
TABLE OF CASES CITED.
xxiii
Hughes et al. v. Edwards, 9 Wheaton
48 & º º . page 476
Hunter’s Administrators v. Jett, 4 Rand.
404. e 224
Inglis v. Trustees of Sailors' Snug Har-
bour 3 Peters 99 . tº 4.76
Inwood v. Twine, Ambler 407 362
Jackson v. Pierce, 10 Johns. Reports
414 e º º e 138
Jackson v. Clark, 3 Wheat. 1 4.76
Jennings v. Merton College, 8 Vesey
'79 e s º e . 124
Julia, Case of the, 8 Cranch 181 450
Karthaus v. Ferrer et al., 1 Peters Rep.
222 e o tº e . 465
Remp v. Squire, I Vesey, Sr. 205 537
Kerr v. Devisees of Moor, 9 Wheat.
565 ſº © º º e 66
King v. Tomb, 10 Mod. 278 258
King v. Eyres & Bond, 4 Burrows
2ll 8 . º © º . 259
Knight v. Knight, 3 P. Wms. 331 81
La Amistad de Rues, 5 Wh. 385 219
Lacum v. Mertins, 1 Vesey, senior
312 º º e . 279
Lane v. Mason, 5 Leigh 520 . 318
Lanoy v. The Duke and Dutchess of
Athol, 2 Atk. 446 . sº . . .279
Lavinia v. Barclay, 1 Wash. C. C. R.
40 º e O . 401, 405
Lee and wife v. Stuart, &c., 2 Leigh
76 . . . . . 506
Lessee of Levy v. M'Cartee, 6 Peters
Rep. 102 . . . . 476
Ludwick v. Croll, 2 Yeates 464. 246
Madox v. Jackson, 3 Atk. 406 . 80
M'Cormick et al. v. Sullivant et al., 10
Wheat. 192 . . . . 66
M“Lemore v. Powell et al., 12 Wheat.
554. ſº • e & . 224
MºRreth v. Symmons, 15 Wesey
344 º e 280
M'Creery's lessee i. Somerville, 9
Wheat. 354 . e - e. 4.76
M“Call v. Peachy’s Administrator 3
Munf. 295 . e 506
Manning v. Spooner, 3 Vesey, jun.
114 e º o e . 83
Martin v. Mott, 12 Wheat. 19 . 329
Mayo v. Giles' Administrator, I Munf.
533 . º te 246
Prince v. Blackburn, 2 East 250
Miller v. Stuart et al., 9 Wheaton
680 . . . . page 225
Mogg v. Hodges, 2 Vesey, sen. 52 279
Moore et al. v. Holcombe et al. 3 Leigh
604. o wº e 101, 102
Morrell v. Dickey, 1 Johns. Ch. Rep.
153 e * º 225
Mostyn v. Fabrigas, 1 Cowper 161 209
Mountjoy v. Lowry, 4 Hen. & Munf.
428 o * • • {505
Myers v. Wade, 6 Rand 444 278
Nereide, Case of the, 9 Cranch 388 395
Nesbit v. Smith, 2 Bro. Ch. Ca.
579 & e º o . 223
New Orleans v. Winter, 1 Wheaton
94 . . . . .346, 390
New York, Case of the, 3 Wheaton
68 414
Nicholls v. Webb, s wheat. 826 75
Noland v. Cromwell, 6 Munfº185°276
Norris v. Crumrey et al., 2 Rand.
323 dº tº o e . 224
Norton v. Rose, 2 Wash. 233. . 245
Orr v. Hodgson et al., 4 Wheaton
453 e & • & 476
Palmyra, Case of the, 12 Wheat. I 527
Patridge v Goss, Ambler 596 512
Patterson v. Slaughter, Ambler 292 124
Patton & Dixon v. Schooner Randolph,
Gilpin 457 . e © . 405
Patton v. Nicholson, 3 Wheat. 204 449
Payne v. Britton’s Executors, 6 Rand,
- I 05 e e o e º 2 I l
Penobscot, Case of the, 7 Cranch
356 . 414
Pettiward v. Prescott, 7 Vesey 541 514
Philips v. Sedley, I Wash. C. C. R.
22.6 º e e e . 405
Pickett v. Morris, 2 Wash. 255 . 245
Pitman v. Madox, I Ld. Ray 732, 2
Salk. 690 . tº - º . 74
Pollexfen v. Moore, 3 Atk. 272 . 280
Pratt v. Northar, 5 Mason 108 . 278
President, &c. of Physicians v. Salmon,
1 Ld. Ray. 682 . 523
Preston v. Gressom's Distributees, 4
Munf. I 10 505
142
Pulteney v. Warren, 6 Wesey 93 514
Queen v. Lord Drummond, 11 Mod.
200 257
Queen v. Ridpath, | 0 Mod. 152 . 258
Xxiv.
TABLE OF CASES CITED. .
Rabaud et al. v. D'Wolf. 1 Paine
580 o * e ... page 396
Read’s case, 3 Coke 33 509
Rees v. Barrington, 2 Vesey, junior
540 e te s tº . 224
Rex v. Tomb, 10 Mod. 278 258
Rex v. Eyres & Bond, 4 Burr. 2118
- 259
Ritchie & Wales v. Moore, 5 Munf.
388 . . . . 245
Robertson’s Administrators v. Union
Bank of Georgetown, 5 Peters 518 66
Roy v. Garnet, 2 Wash. Rep. 11 134
Sale v. Dishman’s Executors, 3 Leigh
548 g • º e . 465
Santissima Trinidad, Case of the, 7
Wheat. 283 . ſº g . 499
Saunders, Case of the, 2 Gallis 210 450
Selby v. Selby, 4 Russell 336, 3 Con.
Eng. Ch. Rep. 694 wº . 280
Shanks et al. v. Dupont, 3 Peters’ Rep.
242 & * “ * • . 476
Sharp v. Earl of Scarborough, 4 Vesey
538 . . 281
Shepherd v. Johnson, 2 East 211 III
Shepherd et al. v. Hampton, 3 Wheat.
200 . e & tº . . .218
Shettleworth v. Neville, 1 D. & E.
454 * tº 514
Shore’s Executors et al. v. Jones et al.
I Wheat. 262 g • . 298
Sims v. Urry, 2 Ch. Ca. 225 512
Smart v. Williams, 12 Win. Ab. 223
§ 3. . . . . . 141
Smith, The General, 4 Wheat. 438 404
Speake et al. v. United States, 9 Cranch
28 . . . . . . 194
Spring v. S. Caro. In. Com. 8 Wheat.
268 º e tº e 144
Stockton v. Cook, 3 Munf. 68 245
Strawbridge et al. v. Curtiss et al., 3
Cranch 267 © . 262, 346
Stultz, &c. v. Pulver, &c., 3 Pai. 18266
Tabb v. Boyd, 4 Call 453 . 506
Taylor v. Deblois, 4 Mason 131. 278
Templeman v. Steptoe, I Munf. 339 537
Tinsley v. Anderson 3 Call 329 171
Torrington's (Lord) case, 1 Salk. 285
2 Ld. Ray 873 e e . 74
Trent v. Trent's Executrix et al., Gilmer
188 * e * * . 279
Trimmer v. Bayne, 9 Vesey 209 280
United States v. Hall et al., 2 Wash. C.
C.R. 366 & S. C.6 Cranch 171 183
United States *. Smith, 2 Hall's
United States v. Hipkin, 2 Hall’s Law
Jour, 80 ë tº page 184
United States v. Morgan, &c. 3' Wash.
C. C. R. I 0 . 201
Law
Jour. 456 . 20.1
United States v. Brown, Gilpin 155 201
United States v. Howell, 4 Wash. C. C.
R. 620 . tº e ſº . 202
United States v. Nicholls, 12 Wheat.
505 te g & * . 225
United States v. Tillotson et al., 1 Paine
305 . . . . . 225
United States v. The Adventure, 8
Cranch 221 tº e 243
United States v. Jones et al., 1 Wheat.
462 © * ſº ſe , 298
United States v. Marshal of N. Carolina
2 Brockenbrough 488 519
United States v. La Vengeance, 3 Dal.
297 tº * e & 525
Van Reimsdyk v. Kane et al., 1 Gallis.
371 © e e & . 67
Virgin, Case of the, 8 Peters Rep.
538 . © * e • 405
Walden v. Chamberlain, 3 Wash. C. C.
R. 290 . . g e . 405
Wallace v. Delancy, 7 D. & E.
266 g e * e . 142
Waters v. Ebral, 2 Vernon 606 . 512
Watkinson v. Barnardiston, 2 P. Wms.
367 © e tº ſº . 403
Welsh v. Barrett, 15 Mass. Reports
380 tº © o e . 74
Westcott's Lessee v. Inhab. of Fairfield
township, Peters C. C. R. 45 390
Weston's (Baron) Case, I Wern.
174. * tº tº tº . 512
Williams, &c. v. Storrs, 6 Johns. Ch.
Rep. 353 * º tº . 227
Williamson v. Gordon's Executors et al.,
5 Munf. 257 . tº 364
Willie and wife v. Wenable's Executor,
4 Munf. 369 . 505
Winn et al. v. Patterson, 9 Peters
663 . . . . . . 144
Winston et al. v. Whitlocke, 5 Call
435 tº gº e & . 225
Wood v. Drury, 1 Ld. Ray. 734 , 141
Wood v. Wagnor, 2 Cranch 9 392
Wood et al. v. Hamilton, Abbot. 403
Wormeley et al. v. Wormeley et al.
8 Wheat, 421 . º , 346
Circuit Court of the Qinittu states.
VIRGINIA, November tem, 1802.
f; EFORE
Hon. JOHN MARSHALL, Chief Justice of the United states.
TABB’s ADMINISTRATORs v. GIST ET AL.(1)
Although a man may not be so absolutely insane, as to avoid his contracts : yet,
if he labours under melancholy, it will excuse inattention to his affairs; and
will authorise relief against judgments obtained against him during such a
state of mind. . -
The rest of the members of a copartnery, cannot engage the firm in another
partnership, so as to bind a member, who was not privy, or consenting to it.
But his privity may be presumed from circumstances; and, at any rate, his
remaining silent and not dissenting, after he knows of the new establishment,
will be considered as acquiescence. Moreover if it could be proved, that he
had withdrawn from the old firm, before the establishment of the new, he would,
by such acquiescence, still be responsible for the transactions of the new ;
especially, if it was generally understood, by other people, that the old firm
was united with the new.
If there be father and son in trade in this country, and a London merchant writes
to the father here, that the son, who was then in London, but about to return
to Virginia, will inform him of the terms on which the London merchant will
(1) Republished from 6 Call. 279.-[Editor.]
Vol. I.-E.
34 VIRGINIA.
Tabb’s Administrators v. Gist et al.
sell tobaccos for the father and son; and the son, afterwards makes a memo-
randum at the foot of the letter, that it was at 10s. per hogshead, although
that memorandum may not have been written in the presence of the London
merchant, circumstances may show, that either that, or some other remunera-
tion, less than the ordinary commission in London, was agreed upon.
THE bill states, that judgments have been obtained by Samuel
Gist, in this court, against John Tabb, the complainants' in-
testate, as surviving partner of Moss Armstead & Co., Richard
Hill & Co., Richard Booker & Co., and William Watkins & Co.
That, at the time of the commencement of the suits and rendi-
tion of the judgments, the intestate was in a state of mind
which unfitted him for business. That a deed of trust has been
executed, to secure payment thereof with interest. That Tabb
was not a partner of the firms of Moss Armstead & Co. and
Richard Hill & Co. That, in 1770, he entered into the firm
of Richard Booker & Co.; and, in twelve months after, with-
drew from it, with the consent of the other partners, although
he permitted them still to retain the credit of his name. That
subsequent to this event, the other partners of Richard Booker
& Co., formed in their partnership character and name, two
new partnerships, the one with Moss Armstead, and the other
with Richard Hill; but that their intestate, as they believe,
never became a member of either of those firms.
That, with respect to the other judgments, a re-settlement
ought to take place, as well on account of the mental derange-
ment of Tabb, as on account of the probability, from his not
being a beneficial partner in the concern of Richard Booker
& Co., that the books and papers, necessary for a defence, were
not in his possession. -
That, in and before the year 1768, Thomas Tabb, the father
of John Tabb, carried on trade in Amelia county, very exten-
sively. That, in that year, John Tabb, who was associated
with his father, formed a connexion with the defendant Samuel
Gist. That it was then, and had been, for some time, a custom
among the London merchants to charge a commission of three
per cent, on the gross amount of their sales of tobaccos con-
NovemBER TERM, isoa. 35
\ Tabb's Administrators v. Gist et al.
signed to them. By this mode of doing business, the London
trade had been injured, because the merchants of the other ports
of Great Britain sold at a fixed rate per hogshead; generally
ten shillings, but frequently as low as five shillings. That a
special agreement was made, by which the defendant Gist
bound himself to sell the tobacco of Thomas Tabb & Son, for
ten shillings per hogshead. That this special agreement was
communicated to Thomas Tabb, in general terms, in a letter of
the 31st December, 1768. That it was the practice of Thomas
Tabb, in his lifetime, and of his son after his death, to stipulate
with their correspondents, for the sale of their tobacco, at a
fixed price per hundred, and not at a commission on the gross
amount of sales. That, upon a settlement of accounts, upon
this principle, it will appear, from a letter addressed by Gist
to John Tabb, that he would be indebted to Tabb between two
and three thousand pounds sterling, besides a claim, on the
same account, for the sales of near 300 hogsheads of tobacco
then on hand, and for many other hogsheads shipped afterwards,
since even omitting these articles of credit, the balance claimed
by the defendant in 1792, amounts only to £246 18s. 11%d.
That, in 1775, or 1776, Gist had in his hands near 300 hogs-
heads of tobacco, the amount of the sales of which were not
returned until after the war; and the plaintiffs have not seen
them all; but the defendant states their average price at £20
sterling per hogshead. That they were, in fact, sold for a much
higher price ; and the plaintiffs therefore, eall for an account of
sales, stating specifically the time when, and the persons to
whom, the several sales were made.
Gist, Shore and Bennett, the trustees in the deed of trust,
and the several representatives of the deceased partners of the
firms, against which the judgments complained of were ren-
dered, are made defendants, and an injunction, with general
relief, prayed for.
1. The exhibits, annexed to the bill, are the deed of trust,
dated the 2d of January, 1798; a letter of the 26th of February,
1798, from Thomas Shore, the agent of Gist, to Mr. Giles,
36 VIRGINIA.
Tabb’s Administrators v. Gist et al.
*
one of the administrators of Tabb, mentioning the balance
alleged to be due, in which he says, he takes no steps, as Mr.
Giles appears to be sanguine of making some discovery to do
away the claims.
2. A letter from Thomas Shore to Mr. Tabb, of the 30th of
December, 1797, stating that he had sent his private account
with Mr. Gist, amounting to £99S 17s. Sterling, with a request
that it should be bonded, which had been refused; and that, if
this refusal should be persisted in, he should institute a suit on
the private account, and issue executions on the judgments.
The answer of Shore to the allegation in the bill that Tabb
withdrew from the firm of Richard Booker & Co., opposes,
1. A letter from John Tabb to Gist, announcing the firm, and
that he was a member of it. 2. Articles of agreement entered
into, in January, 1774, with himself, by John Tabb and
Theophilus Field, the surviving partners of Richard Booker
& Co., for the collection of the debts, and transacting the busi-
ness of the company. 3. A letter from Tabb to Gist, dated in
1783, long after the death of Field, requiring the account
against Richard Booker & Co., and William Watkins & Co.,
on account of which concerns, he expected to be a considerable
sufferer. The answer then states, that the books of Richard
Booker & Co. were taken into the possession of Tabb, who
collected their debts as surviving partner; and that William
Watkins died so long before the rendition of the judgments,
that Tabb might have obtained possession of the books; but,
even now, the complainants, who are in possession of them,
allege no other inaccuracy, in the account, than respects in-
terest. That the defendant does not admit the mental derange-
ment of Tabb. That the defendant cannot answer the allegation
of the bill respecting commissions; but supposes, from the
showing of the plaintiffs, that the agreement related only to
the shipments made by Thomas Tabb & Son. That, as to the
shipments made since the war, he avers the allegation to be
erroneous, since he well remembers hearing John Tabb say he
would ship no more tobacco to Gist; because he refused to sell
NOVEMBER TERM, 1802. 37
Tabb’s Administrators v. Gist et al.
for a guinea per hogshead; and adhered to the old charge of
three per cent. on the amount of sales. That there was an error
committed by the jury, as to interest; and, annexing the ac-
counts on which the judgments were rendered, prays that, if
an account should be directed, the errors, to the prejudice of
Gist, respecting interest, may be corrected.
To that answer, the following exhibits are annexed, 1. A
letter from John Tabb to Samuel Gist, in which he says, “That
I may have some ease and leisure, I have sold two-thirds of
two of my stores to Messrs. Theophilus Field and Richard
Booker, the first gentleman is a partner of Mr. Call’s, and a
person of good fortune, at least £25,000; the latter is brought
up under my father, and I well know is a careful young man.
I am one-third concerned with them, though I have no trouble
with the business. Mr. Booker is to have the management
of the whole. I have recommended you to them as a corre-
spondent in London, and perhaps Mr. Booker may write to
you by this opportunity for some goods. Be pleased to send
them, as you may be assured you shall have punctual and timely
remittance. The other two stores, I continue on my own ac-
count, that I shall have it in my power to send you as much
tobacco as you choose.” 2. The agreement for the collection
of the debts and transaction of the business of Richard Booker
& Co., dated the 1st of January, 1774, signed by John Tabb
and Theophilus Field. 3. A letter from Tabb to Gist, dated
the 1st of August, 1783, in which he expresses a wish to receive
the accounts of Richard Booker & Co., and William Watkins
& Co., that provision may be made for their discharge, and
transmits a bill of £300 to be passed to his credit. 4. A letter
from William B. Giles to Thomas Shore, dated 12th December,
1797, in answer to one of the 30th of November, from Shore
to him, dated the 30th December, in which Mr. Giles says, he
is informed, by Mr. Tabb, that the debt claimed by Gist on
private account was due in consequence of a charge of whole
commissions, whereas the agreement was, that the business
should be transacted for half commissions. 5. A letter from
Richard Booker & Co. to Gist, promising interest.
38 . VIRGINIA.
Tabb’s Administrators v. Gist et al.
• The answer of Gist states, that he believes the intestate of
the complainants to have been capable of transacting business:
and has understood that he assented to the justice of all the
claims, with the exception of the charge of commissions, which
he had fully explained to Shore in several letters. That the
partnership with Richard Booker & Co., and the information
respecting it, were given him by Tabb. That he knows no-
thing of his withdrawing from it; or of his connexion with
Moss Armstead & Co., or Richard Hill & Co. That vouchers
were sent over to establish the several claims ; and Tabb was
regularly advised of the amount of the debts from Richard
Booker & Co., and William Watkins & Co. That Thomas
Tabb & Son were in partnership in 1768, and drew bills to a
great amount on Debert, Burkett & Sayre, to whom they ship-
ped tobaccos, for taking them up. That John Tabb arrived in
England, and found that house unable to pay his bills, in con-
sequence of which he applied to the defendant to pay his bills,
alleging that Debert, Burkett & Sayre were to have sold at ten
shillings per hogshead, and he hoped the defendant would sell
at the same commission. That the defendant consented from
motives of regard to Tabb & Son, and a consideration of their
distress; but Tabb soon afterwards sold to him so much of the
tobacco as had actually arrived, and no commission was charged.
That Tabb, afterwards, proposed to him to sell future consign-
ments on the same terms with Debert, Burkett & Sayre, which
he absolutely refused, but engaged to charge two and a half per
cent. commission only, on the purchase of their goods, and half
per cent. on their premiums of insurance only, although the
usual commission, on shipping goods on credit, was five per
cent. ; and, on insurance, half per cent. on the sum insured.
That, notwithstanding the promise of Tabb to pay interest on
monies advanced, he never charged any. That this item
amounts to £1624 18s., a statement of which, with the letters
of Tabb, are sent to Shore, and are believed now to be in his
power. That the accounts were regularly transmitted to Tabb ;
and he verily believes were perfectly satisfactory. That, in his
NOVEMBER TERM, 1802. 39
Tabb’s Administrators v. Gist et al.
accounts of sales, the king’s allowance, of ten pounds weight
of tobacco, on every hogshead, were deducted from such sales,
and the duties not charged thereon. That he has been informed,
and believes, that about the year 1768, it was usual, for the
merchants of London and Bristol, to charge a commission of
three per cent. on the gross amount of sales of tobaccos con-
signed to them ; and, for the merchants of Liverpool, to charge
five shillings per hogshead, (merely to deceive the eye,) but to
deduct six per cent. from the gross weight of such tobacco,
whereby their commission, in fact, amounted higher than those
of the merchants of London or Bristol. That the defendant
admits the letter of December 1768, but denies any knowledge
of what was added by John Tabb. That this letter related to
the cargo of the ship Molly, which was sold by Tabb to Lydes
Lidderdale and the defendant, and no commission charged.
That he also admits the letter of the 25th of March, 1769; and,
after speaking of the lowness of the premium, he adds, “this,
together with the commission I charge you on the sales of your
tobacco, will enable you to ship to this market on such terms
as to answer as well, if not better, than to any port in the king-
dom.” That he likewise admits the letter of the 9th of June,
1770, stating that he had sent sales of 315 hogsheads by the
Nancy, last year, made out in the common form, because he
did not choose his clerks should know the terms of sale, but
he would credit them for the difference in the account current ;
that this, however, was intended only for the tobacco by the
Nancy, which had been consigned to Debert, Burkett & Sayre,
and which was sold by the defendant. That he also admits the
letter of the 25th of March, 1771, in which he says, “You
will perceive, in your account current, that I have not charged
you any interest, that shall come in against the commission on
your tobacco, which I did not care should be seen in the count-
ing house;” but that this also refers to the cargo of the Nancy.
That the defendant believes, that the claims stated in the ac-
counts presented by his agent Shore, in 1792, claiming a balance
of £246 18s. 11%d. are just, so far as he knows or believes: but
40 VIRGINIA.
Tabb's Administrators v. Gist et al.
that errors were afterwards discovered, to the prejudice of the
defendant, which occasioned them to be re-stated, when the
balance was increased to £659 6s. 104d. exclusive of interest.
That he denies the allegations of the bill respecting the tobaccos
on hand in 1775, or 1776; but admits that he did sell tobaccos
when the intercourse between the two countries was stopped :
accounts of which sales were transmitted to Tabb, when it
was opened; with which accounts, he appeared to be perfectly
satisfied. • . . -
This answer was sworn to on the 27th of October 1801.
The further answer of Gist states, at large, the letter of the
25th of March, 1769, and says, that the defendant believes,
that the expression concerning the commission on tobacco,
relates only to the cargo of the Nancy, particularly mentioned
in his former answer. That he did agree to sell the tobacco
consigned to Debert, Burkett & Sayre, on the same terms they
were to have sold on; but avers the agreement to have extended
to no other tobacco. That he positively refused to sell other
tobaccos, to be consigned in future, on the same terms, which
was perfectly understood by Tabb. That the sale of a large
part of the tobaccos consigned to Debert, Burkett & Sayre, by
Tabb, altered the contract; and, in his opinion, authorised him
to charge the usual commission on the cargo of the Nancy,
which alone remained unsold by Tabb. That therefore he did
charge on that cargo, the usual commission of two and a half
per cent. : which was the condition on which he agreed, with
John Tabb, to receive all future consignments, and this is the
commission alluded to in the letter of the 25th of March, 1769;
and not a commission of ten shillings per hogshead. Neither
Thomas, or John Tabb, ever objected to the charge of com-
mission in his accounts, and he believes they were perfectly
satisfied with them. That, after the death of Thomas Tabb, *
John Tabb did complain of the commission charged on the
cargo of the Nancy, but he did, for the reasons before men-
tioned, decline to allow it: in which he thinks himself justifia-
ble, and still insists on retaining the charge. That, with respect
NoveMBER TERM, 1s02. 41
Tabb’s Administrators v. Gist et al.
to future consignments, he only consented to receive them to
be sold on a commission of two and a half per cent., leaving it
to Tabb to risk the loss from any failure of a purchaser, Or to
pay him half per cent for insurance: and, as Tabb never ob-
jected to his accounts, he considered him as acquiescing under
the charge, and never debited him with the bad debts, although
he sustained very heavy losses in the course of these transac-
tions. That he sold about 2500 hogsheads on their account;
and they never objected to those terms. That the complainants
gained the value of the loose tobacco added to the weight; and
their accounts of sales were regularly transmitted for seven
years, without a single complaint, except as to the cargo of the
Nancy. - -
The exhibits attached to this answer, are 1. Gist's letter to
John Tabb, of 6th December, 1768, relating only to a wheat
speculation. 2. The letter of December 31st, 1768: that of
March 25th, 1769: that "of March 24th, 1771; and a letter
from Gist of the 31st of March, 1794, to William Watkins
& Co. 3. A letter from John Tabb, of the 15th of January,
1774, stating that he expects to collect the whole of the debt
of Richard Hill & Co. 4. The letter from Shore to Tabb, of
the 30th December, 1797, respecting the private account of
Tabb. -
There are sundry depositions, relative to the state of Mr.
Tabb’s mind. Doctor Shore proves, that he was confined, in
1785, 1786, on account of its diseased state. Ross, that a
change in him took place in 1784, 1785; when he grew me-
lancholy, and thinks he was deranged from that period. T.
Bolling was agent for him, and always followed the directions
of Mrs. Tabb, thinking him incompetent to do business. S.
Bolling that he was deranged in 1785. Piles, his clerk, that
the change commenced in August 1785, and continued during
his life. f
Hay and PWickham, for the plaintiffs, contended, 1. That
Mr. Tabb was so deranged in his mind, that his representatives
Vol. I.-F
42 . VIRGINIA.
Tabb’s Administrators v. Gist et al.
—-4°
ought not to be bound by the judgments, which had been ren-
dered against him. That it was proved, that, from the year
1785, to the date of those judgments, he was totally unfit for
business of any kind ; that, in consequence thereof, he was, by
the advice of his physicians, put under confinement for part of
the time; grew melancholy, and continued so during the rest
of his life. 2. That Mr. Tabb was neither a partner of, nor
security for, Richard Hill & Co. and Moses Armstead & Co.
That he was not privy to their establishment; and the other
members could not bind him, in such an undertaking, without
his knowledge, as the transactions were out of the common
course of the copartnery. Watson’s Partnership, 130. That
Shore proved that Mr. Tabb left the concern of Richard Booker
& Co. within twelve months after it was formed. That Gist
never regarded him as a security; for, in his letter of the 8th of
August, 1772, he says that Booker recommended Richard Hill
& Co ; but if Mr. Tabb thought them not safe, he was to get
security before the goods were delivered. In April 1773, he
repeats the recommendation, and adds, you have not told me
who they were. But above all, in April 1775, he says he has
debited Mr. Tabb with the monies received by him, of Richard
Hill & Co. and begs him to receive as much as possible from his
other debts. 3. That Gist was bound by the contract to sell
the tobaccos consigned for a commission of ten shillings per
hogshead only, instead of the three per cent. on the gross sales,
charged by him. That the allegations of the bill are express
upon that point; and ought to have been answered specifically ;
which was not done; and Gist's own letters, as well as John
Tabb’s memorandum upon that of the 31st of December, 1768,
were conclusive against him. 4. That payment of any part of the
judgments, ought not to be enforced, until a fair account of the
sales of the tobaccos on hand, in 1775, 1776, was rendered.
G. K. Taylor and Call, contra. The derangement of Tabb’s
mind is not established ; the most that can be derived from the
testimony is, that he was sometimes melancholy, but utter inca-
NOVEMBER TERM, 1802. 43
Tabb’s Administrators v. Gist et al.
pacity is not proved. Tabb knew and approved of the establish-
ments of Richard Hill & Co., and Moss Armstead & Co., at the
time of their formation : for Booker had been brought up in
his father’s counting house, and had the entire confidence of Mr.
Tabb himself; and therefore, it is impossible to believe that he
had not consulted him upon such important affairs. But whether
he knew of the formation of them originally, or not, it is plain
he knew of them afterwards; and, as he never dissented, he
must be considered as having assented to them from the begin-
ning. Gist was, naturally, led, from the letter of Tabb, and the
recommendation of Richard Booker & Co., to believe, that either
a partnership, or some agreement for mutual obligation, subsist-
ed between them; which justified his confidence in the responsi–
bility of Richard Booker & Co. for the shipments. Tabb was
a continuing partner of Richard Booker & Co.; and responsible
for all their undertakings : which is proved by the articles
between Tabb and Field, as surviving partners, and Shore; by
sundry letters, the advertisement in the newspapers in May
1784; and various other circumstances. The inference of law
is, that the transactions of the firm were founded on the implied
agreement of all the partners, as there is a reciprocal confidence
in each, that the principal managers will act for the benefit of
the whole. The answer is completely responsive to the bill,
and must be disproved, or it is conclusive. The accounts ex-
hibited the transactions fairly and fully ; and, if wrong, would,
and ought, to have been objected to. John Tabb’s memoran-
dum to Gist's letter was immaterial, as Gist was not privy to it;
and it does not even appear when it was made. The connexion
between Richard Booker & Co., and Richard Hill & Co., and
Moss Armstead & Co. was matter of general notoriety; which
is sufficient in a case of this nature : and, therefore, Tabb ought
to prove dissent, or the contrary be presumed. The accounts
had all been sent prior to the war, and no exception taken,
which precludes the complainants from objecting to them now.
1 Win. Suppl. 44. 1 Eq. Cas. Ab. 13. The plaintiff’s own docu-
ments prove that Tabb was considered as a partner.
Cur. adv. vult.
44 VIRGINIA.
Tabb's Administrators v. Gist et al.
MARSHALL, Chief Justice. This suit is brought to enjoin
judgments to a large amount obtained by the defendant Samuel
Gist, against the intestate of the complainants, as surviving part-
ner of Moss Armstead & Co., Richard Hill & Co., Richard
Booker & Co., and William Watkins & Co.
The points made by the counsel for the complainants are,
1st. That their intestate was in such a state of mental de-
rangement when the suits were instituted, and the judgments
complained of were rendered, that those judgments ought not
to bind him ; and his representatives ought yet to be permitted
to defend his estate against the claims on which they are founded.
2dly. That he is not liable for the debts of Moss Armstead
& Co., and Richard Hill & Co.; because he was never a member
of either of those firms.
3dly. That Samuel Gist is greatly indebted to their intestate
on private account; which debt ought to be opposed to the debts
due from him as surviving partner of Richard Booker & Co.,
and William Watkins & Co.
Without going into a minute investigation of the testimony
respecting Mr. Tabb’s state of mind for several years before his
death; or determining, whether its derangement was so com-
plete, during the whole of that time, as to invalidate any speci-
fic contract he might have entered into, it is sufficient to observe,
that the condition of his mind was certainly such, as might well
account for his having failed to search out, and set up, a real
defence, at law ; and therefore, if he possessed such real defence,
the judgments ought not to preclude his representatives from it
now. - -
The question, whether he was a partner of either or both the
concerns of Richard Hill & Co., and Moss Armstead & Co., is
therefore considered as now perfectly open, to be decided on
such testimony as may be adduced by either party.
It is admitted that Mr. Tabb was a partner of Richard Hill
& Co., and that Richard Booker & Co. held an interest in Moss
Armstead & Co. and Richard Hill & Co.: But it is denied, that
Mr. Tabb knew of that interest; and it is contended, that he
NOVEMBER TERM, 1802. 45
Tabb’s Administrators v. Gist et al.
could not be made a partner of those firms by any act of his co-
partners, or otherwise, than by his own consent.
It is also admitted, that Gist was unacquainted with the mem-
bers of either Richard Hill & Co., or Moss Armstead & Co.;
that he did not credit them on the confidence, that Richard
Booker & Co. were of the partnership: and, of consequence,
that the accountability of Mr. Tabb, for them, cannot be main-
tained, on the ground of their being led to consider him as a
partner.
It was stated by one of the counsel for the defendants, that,
being bound by all the acts of the company, Mr. Tabb became
a member of any copartnery into which Richard Booker & Co.
should enter, whether he did, or did not, assent individually to
being engaged. - -
To this opinion, in the latitude in which it was laid down, I
cannot subscribe; and, if in the progress of the suit, it should be
deemed necessary to insist upon it, and the gentleman who has
advanced it, still retains it, I will thank him to furnish me with
those authorities, on which, he may rely. The opinion to which
I now incline is, that the assent of any member of a particular
firm, is necessary to engage him as a member of a new firm ;
and that the general authority given by all to each, or even to
the acting or managing partners, to bind the whole company,
does not extend to the erection of new companies, composed of
new members. -
In order to subject Mr. Tabb as a partner of Richard Hill &
Co., and Moss Armstead & Co., his consent to become a partner
must be shown. But to show this consent, an express declara-
tion from himself cannot be considered as indispensable; other
testimony ought to be received, and circumstances must be re-
sorted to in order to ascertain the fact.
It is relied upon, by the counsel for the defendant, as prima
facie evidence of his assent, that Booker and Field cannot be
presumed to have engaged the firm in a new partnership, with-
out his approbation. -
The circumstances of the company strongly support this pre-
46 - VIRGINIA.
Tabb's Administrators v. Gist et al.
sumption. The members of it resided at no great distance, and
its business was conducted almost under the eye of Mr. Tabb.
In the ordinary course of human affairs, he must frequently
have fallen in with his partners, and have some made in-
quiries into the affairs of the company. It is presuming too
much to suppose he could have remained uninformed of a cir-
cumstance so interesting to himself, as that Richard Booker &
Co., of whom he was one, had entered into a new partnership;
and, if he did know it, and made no objection to it, his consent
to the transaction would very certainly be implied. It is not
stated that the members composing the firms of Richard Hill &
Co., and Moss Armstead & Co., were concealed from the world;
or less known than is usual on such occasions. Nor is it stated,
not to have been a matter of notoriety, that a share in each was
held by Richard Booker & Co. I cannot, therefore, presume
any extraordinary concealment to have been used, or that Mr.
Tabb was unacquainted with a circumstance which it so much
concerned him to know, and which it was so much in his power
to know.
This presumption has been met by the complainants, who
state that their intestate withdrew himself in 1771 from the
copartnery of Richard Booker & Co., and might therefore very
well be presumed no longer to inquire concerning their trans-
actions.
The articles of agreement entered into with Shore, in 1774,
seem to me to be very strong on this point. In that paper, Tabb
states himself to be one of the surviving partners of the com-
pany: he contracts with an agent for the management of its af-
fairs; binds himself for the salary of that agent, whom he obliges
to account to him as well as to Theophilus Field, and to pay
him as well as Field, the money which might be collected. If
he had left only his name to the company, and had no real in-
terest in it, this agreement would, most probably, have been
expressed in very different terms. Another evidence on this
subject is, I think, his opening a letter to Richard Booker & Co.
It is a liberty which only a member of that company would
NOVEMBER TERM, 1802. 47
Tabb’s Administrators v. Gist et al.
-**
have taken. The counsel for Mr. Tabb’s administrators,
endeavour to account for it by stating that the London mark
was on the letter, and might well be considered by him as
containing a dun. That, I believe, does not follow. Letters
from London to American merchants are not necessarily written
for the purpose of demanding money. But should this even be
conceded, the fact would still evidence a solicitude to inquire
into the affairs of Richard Booker & Co.; and that solicitude
would have informed him that they had taken an interest in the
other firms.
Another circumstance of some weight with me, is furnished.
by the correspondence with Gist. Richard Booker & Co.
(which Gist considered as Tabb), had recommended Moss
Armstead & Co., and Richard Hill & Co.; and Gist complained
of their want of punctuality. He inquires who they are, and
employs Tabb to collect from them. It is scarcely possible,
that, under such circumstances, Tabb should not learn that
Richard Booker & Co. were interested with them.
That an open letter, directed to Richard Hill & Co., should
be among Tabb’s papers, is not a circumstance of entire indiffer-
ence. It is true, that letter may have been obtained by his
administrators since his death, or may have been received by
himself, after he was rendered liable as a partner. If so, this,
or any other circumstance tending to do away the influence
arising from being in possession of such a letter, may, and ought
to be shown.
It does not appear when Tabb, if he ever did, withdrew from
Richard Booker & Co.; or when the two other companies were
formed. It is said by the plaintiff’s counsel, that he withdrew
in 1771; and, in January 1772, Gist writes to Tabb concerning
Richard Hill & Co., as his correspondents, and asks concerning
their punctuality. It is probable that the new companies were
formed prior to the date of the supposed withdrawing; and if
so, then, according to the view I have been taking, he would be
* , responsible, whether he withdrew or not: But, if afterwards,
(supposing the withdrawing can be proved), even then, accord-
48 VIRGINIA.
Tabb’s Administrators v. Gist et al.
ing to the same view, he may be liable to one not knowing that
he had withdrawn, as he suffered his name to be used, without
any public declaration of dissent. ‘. .
It is unnecessary, however, to decide this question absolutely
now ; other testimony may be obtained, which may change its
present appearance. There may, perhaps, be the testimony of
merchants of that day to show that it either was, or was not
understood that Richard Booker & Co. had an interest in the
two firms of Richard Hill & Co. and Moss Armstead & Co., or
other circumstances may be adduced to influence the case. But
I have thought it right to signify the impressions received from
the testimony now in the cause. If nothing further should
appear, the opinion to which I strongly incline is, that Mr. Tabb
cannot be considered as ignorant of the copartnership formed by
Richard Booker & Co., with Moss Armstead & Co., and Richard
Hill & Co.; and, if he was not ignorant of those copartnerships,
his silent acquiescence, under their use of the firm, to which he
was known to belong, is evidence of his consent that they should
use it. -
The most material inquiry in the case is, to what commissions
was the defendant, Samuel Gist, entitled, on the sales of the
tobaccos shipped to him by Tabb 2 -
The bill charges expressly, an agreement entered into with
Samuel Gist, by John Tabb, while in England, in 1768, that he
should sell the tobaccos shipped to him by Thomas Tabb & Son,
at a commission of ten shillings per hogshead. .
The counsel for the complainants suppose this allegation of
the bill to have required a much more explicit answer than it
has received; and presuming it to have been evaded, infer from
thence a consciousness, in the defendant Gist, of its truth. If
this explicit allegation had not been as explicitly answered, the
answer might very properly have been excepted to, as insuf-
ficient. But, on examining the answer, it does not appear to
me liable to the objection which has been made to it.
The defendant, Gist, states, that Thomas Tabb & Son had, in
1768, shipped, in different vessels, a very large quantity of
NOVEMBER TERM, 1802. 49
Tabb’s Administrators v. Gist et al.
tobacco to Debert, Burkett & Sayre, and had drawn bills, on
them, to a great amount. That John Tabb preceded both the
tobacco and bills, and on his arrival in London, found Debert,
Burkett & Sayre unable to pay his bills, and unfit to be trusted
with the sale of his tobacco. That, from friendship to Tabb,
and compassion for his distress, he consented to sell the tobaccos
consigned to Debert, Burkett & Sayre, on the same commission,
at which the original consignees were to have sold them. That
Tabb applied to him to sell future consignments on the same
terms, but he peremptorily refused to do so. The answer then,
without stating any agreement respecting commissions on future
consignments of tobacco, proceeds to detail the advantageous
terms on which he agreed to transact the other business of
Thomas Tabb & Son, in London. In this answer no agreement
whatever, respecting future commissions on the sales of tobacco,
is stated. l
In the supplemental answer, this subject is again taken up.
The agreement for the ten shillings per hogshead is again
declared to have been limited to the sales of the cargoes con-
signed to Debert, Burkett & Sayre ; and that whole transaction
is stated more in detail. The answer then proceeds to aver,
explicitly, that Gist refused to extend the agreement to future
consignments, and that, with respect to them, it was positively
contracted that he should sell on a commission of two and a half
per cent., with the addition of half per cent, for guaranteeing the
debts. -
The answer adds another circumstance of infinite importance,
which, if untrue, it is incumbent on the complainants to disprove.
It is, that, for seven years, he continued to transmit accounts of
sales and accounts current to Thomas Tabb, and Thomas Tabb
& Son, conforming to this idea of the agreement between them,
and that they never objected to such accounts. It is, I say,
incumbent on the complainants to disprove it, because, if it is
untrue, they must be supposed to possess the means of showing
its untruth.
The counsel for Mr. Gist have insisted very strongly on the
Vol. I.-G -
50 VIRGINIA.
Tabb's Administrators v. Gist et al.
evidence furnished by the answer, which, they say, is explicit,
and is responsive to the bill. It is admitted to be so ; and
unless there be sufficient reason for questioning the verity of
these allegations of the answer, they must decide the cause.
Without saying what the opinion of the court may be, when
that further information shall be received, which will now be
required, I think the different averments of the defendant’s
answer, and the documents referred to, afford sufficient reason
for believing that some agreement, other than that stated by
Mr. Gist, must have been entered into by the parties; and,
consequently, that a decision ought to be suspended for further
inquiry.
I shall not rest, much, on the omission in the first answer to
state what was the real contract to govern future sales to be
made, by Gist, for Tabb ; because, although such a statement
might have been expected, yet the bill does not require it; and
the omission to state it was therefore excusable. But I think
the motives leading to the contract for ten shillings per hogs-
head, on the tobaccos consigned to Debert, Burkett & Sayre,
deserve some notice. Mr. Gist was aware that his consenting
to sell a considerable quantity of tobacco for a commission of
ten shillings per hogshead, would lead to the expectation of his
continuing to sell on that commission, and might create some
presumption that an agreement, to that effect, was actually made.
He, therefore, searches for a motive which should discriminate
between that particular transaction and the general course of
business. The motive which he assigns is friendship and com-
passion for Tabb.
One of the most opulent merchants of Virginia, having near a
thousand hogsheads of tobacco at his disposal, is not much an
object of compassion. But Mr. Gist very soon forgets the
motives assigned for his own conduct. He considers himself as
absolved from the contract he had made, by the act of Mr. Tabb
in selling himself the cargo of the Molly, which amounted
to about five hundred hogsheads. Now, if, from motives of
friendship and compassion, he had consented to sell all the
NOVEMBER TERM, 1802. 51
Tabb’s Administrators v. Gist et al.
tobaccos consigned to Debert, Burkett & Sayre, at a commission
which did not compensate his trouble, I cannot conceive how a
a diminution of the quantity to be sold, on such terms, could
be considered as injurious to him. But the compassion and
friendship of Mr. Gist, displays itself in a still more extraordi-
nary manner. He represents himself to have purchasd origin-
ally the whole cargo of the Molly; but that Tabb afterwards
sold a part of it, for about £400 more than he was to have given.
This is a profit to which he thinks himself, in equity, entitled ;
and because another person in the market purchased the com-
modity of his friend at a much higher price than his compassion
would allow him to give, he considers it as so much profit with-
drawn from himself, for which he is entitled to compensation.
In still another view, the statements of Mr. Gist on this subject
deserve to be noticed.
A comparison between the answers of Gist and Shore, on the
subject of commission, suggests a remark too, not altogether un-
worthy of attention. Mr. Gist says that Mr. Tabb objected,
since the conclusion of the war, to the charge of commissions in
his accounts, and that he had fully explained that subject in his
letters to Mr. Shore. We should expect, then, that Mr. Shore
would, in his answer, altogether omit the subject, or give the ex-
planation he had received from Mr. Gist. He does neither.
He would appear to have received no information whatever from
Gist on this subject, and to remark, only, on the statement made
by the complainants in their bill. This would certainly indicate
that the explanation, given him by Mr. Gist, was not such as
Mr. Shore chose to rely on.
The parties admit some agreement in 1768. Tabb says it
was for future consignments; Gist, that it was for those ad-
dressed to Debert, Burkett & Sayre, -
In examining the testimony in the cause, other than is to be
found in the answers themselves, the first document is that of
October 10th, 1768, which says, “ your son, no doubt, has
acquainted you with his selling me the Thomas’s cargo, and the
52 VIRGINIA.
Tabb’s Administrators v. Gist et al.
price, as also the terms on which I have agreed to sell the
Molly’s cargo when it arrives ; but as these things are out of
the common road, I must beg you not to mention it to any per-
son living.” - t
This letter plainly relates to a single cargo. Not to future
consignments, nor to the whole tobacco consigned to Debert,
Burkett & Sayre.
The next letter is December 31, 1768, which says, “ your son
will inform you the terms we are upon as to the commission, as
well as that on which I am to sell your tobacco ; which I desire
may be an entire secret.” At the foot of this letter is a memo-
randum made by Mr. Tabb, at what time is unknown, in these
words, “the terms for selling the tobacco was ten shillings per
hogshead for commission, and we to have every advantage for
king’s allowance, &c.”
This letter is averred by the defendant to relate, only, to the
cargo of the Molly, and in this he may be correct; but I will
state some reasons in support of a supposition that he has, per-
haps, confounded dates, and that this observation was rather
designed for the letter of October 10th, than that of Decem-
ber 31.
Mr. Gist had already mentioned the Molly to Mr. Tabb, and
had expressed a confidence, that his son had informed him of
the terms on which that cargo was to be sold. When speaking
of a contract to have related to a single vessel, he uses terms
applying only to a single vessel ; when, then, he changes his lan-
guage, and uses terms applicable to the business generally, there
is reason to suppose he speaks of a contract embracing the busi-
ness generally. He says too, “your son will inform you ;” a
phraseology which, contrasted with that of the letter of October
10th, strongly indicates a different contract, of which informa-
tion had not probably been before given. It is the language
which would be used, if the son was then about to sail, or had
just sailed, for America ; and would give the information ver-
bally. The idea, that the fact is so, receives some support from
the circumstance that the letter of December 31st, is addressed
November TERM, is02. 53
Tabb’s Administrators v. Gist et al.
to Thomas Tabb, and that of March 25th following, is addressed
to Thomas Tabb & Son.
It is true, that the words “ your son will inform you the terms
we are upon as to the commission, as well as that on which I am
to sell your tobacco,” may be limited by other testimony to a
single cargo ; but it is not less true, that the words naturally
import a general contract; and when it is observed that the
agreement, respecting the commission, is confessedly a general
one, there is the more reason to believe, that that respecting the
tobacco, made between the same persons, probably at the same
time, relative to a branch of the same business, and communi-
cated in the same sentence, and with the same mode of expres-
sion, was of the same extent. The whole agreement then sub-
sisting, may have respected a single cargo, and the agreement
may have been extended. This is said to be explained by the
letter of October 10th. I think so.
The next letter, upon this subject, is not to me conclusive ; but
I think it rather less equivocal than that which has just been
noticed. . . -
It is the letter of the 25th of March, 1769, and is addressed
to Thomas Tabb & Son. In that letter, Mr. Gist states his con-
viction that the extravagant charges on goods, together with the
large commissions on tobacco, have driven the consignment
business from London : He is therefore determined to do busi-
ness, with punctual people, on the very best terms.
This resolution is, certainly, not limited to a single transac-
tion, but is to govern permanently ; for it is to retain the con-
signment business, which was leaving London in consequence of
the “extravagant charges on goods, together with the large com-
missions on tobacco ;” and the business he was determined to do
“on the best terms,” and clearly on better terms than those which
had driven the consignments elsewhere, related to the charges on
goods, and the commissions on tobacco.
He then proceeds to state to Mr. Tabb, the terms on which
he shipped his goods, and did his insurance business, which, he
adds, “with the commission I charge on the sale of your tobacco,
will enable you to ship tobacco as well to this port, as to any
54 VIRGINIA.
Tabb’s Administrators v. Gist et al.
other place in the kingdom : indeed the prices are always better
here, but it is the great charge attending it that destroys the
sale.”
A criticism on this sentence cannot be necessary to show that
the words, according to their natural import, relate to the gene-
ral course of doing business ; and, if to any specific agreement
whatever, to one which extends to the business generally. -
Mr. Gist, however, in his answer, avers that these expressions
allude only to an agreement to sell the cargo of the Nancy, and
that no agreement, at the rate at which that cargo was sold, was
ever made for future consignments.
This may be true. Admitting it to be true, the necessary
inquiry is, what then is the operation of this letter 2
An agreement has been made between Gist and the younger
Tabb for his father, for the sale of a particular cargo of tobacco,
at a specified commission. They separate, and the younger
Tabb returns to America, and reports the contract to his father.
Gist then writes a letter to Tabb & Son, in which he represents
the high charges on goods, and on the sales of tobacco, as the
causes which had driven the consignment business from London,
whither the price of tobacco would allure it, but for these
causes. He is determined to do business on better terms. You
perceive, he says, what I have charged on the shipment of your
goods, and this, with the commission I charge on your tobacco,
will enable you to ship to this port. What commission is here
alluded to ? Mr. Gist says, the commission on the sales of the
cargo of the Nancy. Be it so. But how was that ? The letter
is clearly designed to affect his future conduct through the
medium of his future interest. It must, then, be understood as
a proposition for the transaction of future business. The present
commission on the cargo of the Nancy, as well as the present
charge on insurance, and shipment of goods, must be under-
stood as constituting the rule for future charges, or the letter is
deceptive.
It would seem as if Mr. Gist was aware of this, and therefore
his answer proceeds to state, that in consequence of the sale, by
NOVEMBER TERM, 1802. 55
Tabb's Administrators v. Gist et al.
Mr. Tabb’s agreement, of the greater part of the tobacco con-
signed to Debert, Burkett & Sayre, he had considered himself
as absolved from the contract of selling the cargo of the Nancy
at ten shillings per hogshead, and had determined to charge two
and a half per cent. on the gross amount of sales, and this was
the commission particularly agreed on for the business generally
with Tabb, and the particular commission alluded to in his let-
ter of the 25th of March.
Let us inquire how far this explanation will answer the pur-
pose.
The letter does not mention the amount of the commission,
but plainly alludes to a charge supposed to be known to Mr.
Tabb. This, he says, was the charge on the sales of the cargo
of the Nancy. Mr. John Tabb left England in the expectation
that this cargo was to be sold according to the original contract,
for Mr. Gist does not allege that he ever told Mr. Tabb he
intended to charge a higher commission than was stipulated.
The sales of the cargo did not accompany this letter. They
were not sent till June in the following year. How then could
Mr. Gist refer to two and a half per cent. as the commission on
the sales of the cargo, when he had stipulated to sell for ten shil-
lings, and had never informed Mr. Tabb of his internal resolu-
tion to charge a higher commission? Admitting Mr. Tabb to
understand this as referring to the sales of that cargo, he must
understand it as referring to ten shillings per hogshead com-
mission : because that was the agreement, and it was not
changed.
But it may be supposed, that this is mere inaccuracy of ex-
pression, and that the words refer to the general agreement of
two and a half per cent. commission asserted in the answer.
Even this will not serve the purpose. The letter apparently
alludes to a commission lower than that which it complains of
as too high, and the answer expressly states, that the commis-
sion alluded to was the customary commission.
The defendant also states, that he determined to charge a
commission of two and a half per cent., when the letter of the
56 VIRGINIA.
Tabb’s Administrators v. Gist et al.
25th of March was written, and that this is the commission that
letter alludes to. Yet, in his letter of the 9th June, 1770, he
says, “I have already wrote you by this opportunity, and sent
sales of your 315 hogsheads by the Nancy last year, which you
will see are made out in the common way, as I did not care to
let even my clerks know it was to be made out different. I
will give you credit for the difference in account current.”
Even so late as the 24th March, 1771, he says: “You will
perceive in your account current, I have not charged you any
interest; that shall come in against the commission on your
tobacco, which I did not care should be seen in the counting
house.” Thus, two years after the letter was written, which
Mr. Gist asserts alluded to a different commission from that
which had been stipulated, he continues to assure Mr. Tabb that
the stipulation will be observed.
This is not all. There is no reason to suppose the account
current, alluded to, contained only the sales of the cargo of the
Nancy. His expression is, “I send all your accounts;” and in
a different part of the same letter, he speaks of the sales of a
different cargo, as being transmitted. There is no reason to
suppose that the commission on the tobacco, which is spoken of
generally, is not the commission on all the tobaccos of which
accounts of sales were rendered by that conveyance, and the
letter makes no discrimination between the commission charge-
able on the different cargoes.
I have still another observation to make on this subject.
There is much reason to doubt, whether the Nancy was really
consigned to Debert, Burkett & Sayre. The allegation of the
answer is not, in this respect, responsive to the bill, and, conse-
quently, is not evidence. -
It does not appear when Mr. Tabb arrived in England. No
doubt, on his first arrival, he informed his father of the state of
the house of Debert, Burkett & Sayre; and, of consequence, no
further consignments would be made to them. How soon this
information may have been given, does not appear, but, it cer-
tainly, very considerably preceded the 10th of October, 1768 ;
NOVEMBER TERM, 1802. 57
Tabb’s Administrators v. Gist et al.
—-
because, on that day, Gist gives his father notice, that he had
before that time agreed to sell the cargo of the Molly, and pur-
chased from John Tabb, the cargo of the Thomas, and had
loaded her with goods, by John Tabb’s order, to the amount of
#1137 8s. 04d. When the Nancy arrived is not stated ; but
it was certainly some time in the year 1769. The letter of
June 1770, speaks of her as a vessel arriving in 1769. These
dates make it very probable, though by no means certain, that
she was originally consigned to Gist himself. +
These appearances, from the answer and letters, the counsel
for Mr. Gist have endeavoured to account for in different ways,
but they have used one argument which would have very great
weight if true; and which, if clearly supported by the fact,
might perhaps be conclusive. It is that the accounts current,
transmitted by Mr. Gist, have regularly been received by Mr.
Tabb, and never complained of. For this assertion they have
the evidence of the answer, and from the nature of mercantile
transactions, it must be supposed true, if not disproved by the
complainants.
The complainants have adduced several letters on which they
rely, but there are two which seem to me really to evidence that
Mr. Tabb always considered himself as entitled to the credit he
now claims. They are of March 10th, 1773, and March 6th,
1774. i -
These letters demonstrate that Mr. Tabb claimed a credit for
a deduction on account of the commission, and his own secret
mode of transacting the business might prevent their complain-
ing in a different manner; but they do not show what that de-
duction was. For this, the memorandum at the foot of the let-
ler of the 31st of December, is appealed to. This, the answer
avers Mr. Gist to be entirely ignorant of; and from the mode of
expression used, there is reason to believe that the memorandum
was made in Virginia. I will not now say, what its influence
ought to be. The answer also admits the contract for the sales
of the tobaccos consigned to Debert, Burkett & Sayre, to have
stipulated for a commission of ten shillings per hogshead.
VoI. I.-H.
58 VIRGINIA.
Tabb’s Administrators v. Gist et al.
These circumstances would certainly favour the opinion, that
the difference between the commission charged, and ten shil-
lings per hogshead, is the credit to which Mr. Tabb is entitled,
if it shall be ultimately determined that he is entitled to any
thing. But there are other circumstances of no inconsiderable
weight, which would diminish this allowance. The answer, in
the most explicit terms, denies an agreement to sell generally at
ten shillings; and Mr. Giles in his letter to Mr. Shore, of De-
cember 12th, 1797, states his information from Mr. Tabb to be,
that the business was to be done at half commissions. There is,
then, a good deal of difficulty on this point; and if, on the pro-
duction of the papers which will be directed, the opinion of the
Court should still be that the complainants are entitled to some
deduction, it will then be necessary to determine what that de-
duction is.
It is very apparent, that many letters and papers must have
passed between the parties, which would throw light on this
subject. The complainants require that Mr. Gist should be
directed to produce on oath all the letters he ever received from
the intestate of the complainants. I have no objection to making
such an order, but I think justice requires, that it should com-
prehend the complainants likewise. The letter book of Mr.
Tabb, in such a case as this, ought to be exhibited. That a
merchant doing business as extensively as Mr. Tabb, should be
without a letter book, is a phenomenon in the mercantile world,
which requires very clear testimony to be credited.
The shipments made since the war, I consider as very clearly
out of the contract. There is not only evidence in the case that
Gist claimed the customary commission, but I am well satisfied
that the war terminated the old contract. :
The complainants also require, that Gist should be compelled
to exhibit accounts of sales of the tobaccos in his hands in 1775
and 1776. If he has not already exhibited such accounts, it
surely would be reasonable that he should do so. The bill does
not allege that they have not been received, and the answer
states them to have been transmitted. If, therefore, to transmit
NOVEMBER TERM, 1802. 59
Tabb’s Administrators v. Gist et al.
duplicates would be any inconvenience to Mr. Gist, I certainly
should not direct it; but as they may be exhibited without
inconvenience, I have no objection to ordering them, though if
any expense attends the filing of them, it ought to be defrayed
by the complainants. . .
There is another part of the case which may be of very con-
siderable magnitude. The answer states that several calculations
of interest have been omitted, to which the defendant Gist is
entitled. The letters leave it not improbable, that these omis-
sions were designed to balance the commissions. Should the
fact be so, and Mr. Tabb’s estate should be credited with the
difference of commissions, it is reasonable that it should be
debited with the omissions of interest. I give no opinion as
to the fact; but I shall direct the commissioner to notice it in
the account. -
On these principles, the following decree is to be entered :
This cause which abates as to the defendant, Thomas Shore,
by his death, came on to be heard on the bill, answers, (that of
Thomas Shore being read by consent), the depositions and other
exhibits filed in the cause, and was argued by counsel. On con-
sideration whereof, it is the opinion of the Court that the com-
plainants ought not to be precluded by the proceedings at law,
from setting up in this Court a just defence, (if any they have,)
against the judgments in the bill mentioned. The several
claims, therefore, on which the judgments against John Tabb, as
surviving partner of Richard Booker & Co., William Watkins
& Co., Richard Hill & Co., and Moss Armstead & Co., were
referred, are referred to one of the commissioners of this Court,
who is directed to examine, settle and report the same, stating
such matters specially, as either party may require, or he may
think fit. And the Court is further of opinion, that if, as is in
the bill alleged, any balance be due from Samuel Gist to the
estate of John Tabb, on the various transactions between them,
that balance ought to be set off from the judgments obtained by
the said Samuel Gist, against the said John Tabb, as surviving
partner of the several trading companies aforementioned, to
60 VIRGINIA.
Tabb's Administrators v. Gist et al.
ascertain which fact, the accounts between the said Samuel Gist
and the said John Tabb, are also referred to one of the commis-
sioners of this Court to be examined and settled by him. And
he is specially directed to state the accounts between the parties
on the following principles:
1st. So as to show how they will stand, allowing the defend-
ant, Samuel Gist, a commission of ten shillings sterling money
of Great Britain, on each hogshead of tobacco shipped to him by
Thomas Tabb & Son, and John Tabb, previous to the day
of 2 1775, and sold by him on their account, or on the
account of either of them subsequent to the 31st of December,
in the year 1768. - -
2dly. So as to show how the same accounts will stand on an
allowance of one and one half per cent. commission on the gross
amount of sales of all tobaccos shipped and sold by the same
parties respectively, between the same periods.
3dly. In making up these accounts, he is to calculate interest
on the sums due either of the parties, according to any special
agreement which may be proved to have subsisted between
them, or in default of such agreement being shown, according to
the custom of merchants; however, in the accounts rendered,
such calculations of interest may have been omitted. w
The commissioner is further directed also to state the accounts
in such other manner as may be required by either of the par-
ties, stating such matters specially as they or either of them may
direct, or he may think fit, and make report to the Court in order
to a final decree, And the more effectually to enable the com-
missioner to make up his report, it is further ordered and directed,
that the said Samuel Gist do, on oath, exhibit and file with the
clerk of this Court, all the letters he has ever received from
Thomas or John Tabb between the first day of January, 1769, and
the day of , 1775, or if it be not in his power to pro-
duce such letters, that he state in like manner the cause of such
disability. And he is further directed to file with the clerk of
this Court, such accounts of sales of all the tobaccos received by
him prior to the signing the preliminary articles of peace be-
NOVEMBER TERM, 1802. 61
Tabb’s Administrators v. Gist et al.
tween the United States of America, and his Britannic majesty,
to be sold on account of the said John Tabb, as had not been
rendered by him previous to the last mentioned time.
And it is further ordered, that the complainants do file with
the clerk of this Court the letter book of the said John Tabb, or
copies of all the letters written by him to the said Samuel Gist,
previous to the day of , in the year 1775, verified on
oath, or if there be no letter book, that they do, on oath, file all
the copies which are, or have been, in their possession.
All which matters and things are decreed and ordered this
9th day of December, 1802; and by consent of parties, general
commissions are awarded the parties, to be executed before any
notary public, upon giving reasonable notice thereof.
Çittttit Cutttt of tipt Jºſuitely states,
VIRGINIA, NOVEMBER TERM, 1803.
BEFORE
Hon. JOHN MARSHALL, Chief Justice of the United States.
BLANE v. DRUMMoRD.
The assignees of a bankrupt in England, cannot maintain an action at law in
their own name against a debtor of the bankrupt in Virginia, and the action is
only maintainable in the name of the bankrupt himself. Though the right to
personal property may be regulated by the laws of the domicil, as in the case of
the bankrupt laws of England, and though the equitable rights of the assignees
acquired under those laws will be respected in our courts, yet the right of action
must be regulated by the law of the forum in which the suit is brought: And
the transfer of a bankrupt’s effects in England being an assignment merely by
operation of law, and not by the act of the party, is not such an assignment of
the legal title to the assignees as will enable them to maintain an action in their
own name in the courts of Virginia.
THIS was an action of debt, on a bond with collateral condi-
tion, brought by Thomas Blane, the obligee, in his own name,
against William Drummond, one of the obligors. The defend-
ant pleaded specially, that the action ought not to be maintained
against him, “ because he saith that the said plaintiff is a British
subject, and that after the date of the said writing obligatory in
the declaration mentioned, and before the institution of this
NOVEMBER TERM, 1803. 63
Blane v. Drummond.
suit,” “at the city of London, &c., where the said plaintiff then
resided, he, the said plaintiff, became a bankrupt within the
meaning and purview of the several statutes of the parliament
of Great Britain made against bankrupts; by which said sta-
tutes it is in substance declared, that all the estate and effects,
rights and credits, of any person becoming bankrupt, &c. (in
whatever country the estate and effects, rights and credits afore-
said, may be situate and exist,) shall be assigned to, vested in,
and belong to assignees, to be chosen by the creditors of such
bankrupt, for the uses in those statutes mentioned: And the
defendant further says, that in consequence of the bankruptcy
aforesaid, of the said plaintiff, all the estate and effects of the
plaintiff, whatsoever and wheresoever, were assigned, according
to the said statutes to Samuel Brandram, Thomas Maltby, and
George Glenny, who are also British subjects, and in whom, by
reason of the premises, all the estate and effects, rights and cre-
dits, whatsoever and wheresoever, which were of the plaintiff at
the time of the bankruptcy aforesaid, became vested in the said
assignees, for the benefit of the creditors of the said plaintiff;
which said assignees, by the statutes aforesaid, have the exclu-
sive right to sue for and recover, all the debts, rights, credits,
and effects, which were of the said plaintiff, at the time of the
bankruptcy aforesaid; and, consequently, that they the said
assignees have the exclusive right to sue for and recover the
debt in the declaration mentioned : and this the defendant is
ready to verify, &c.” w -
In his replication to this plea, the plaintiff insisted that, “by
any thing in the said plea alleged he ought not to be barred
from having his said action, because he saith that Samuel Bran-
dram, Thomas Maltby, and George Glenny, the said assignees,
&c.,” did, “by their letter of attorney duly sealed and executed,
constitute and appoint John Hamilton, now of Norfolk, a Bri-
tish subject, and consul to his Britannic Majesty, their lawful
attorney, to ask, sue for, and demand in their name, or in the
name of the said Thomas Blane, all debts, dues, and demands,
originally owing and payable to the said Blane, from any per-
64 * VIRGINIA.
Blane v. Drummond.
son or persons resident within the United States of America;
and the plaintiff Saith that his said action was begun and is pro-
secuted with the consent and approbation of his said assignees,
and their said attorney, and is carried on for the benefit of his
creditors, under the direction of his said assignees and their at-
torney; and this he is ready to verify, &c.”
The defendant demurred generally to the plaintiff’s replica-
tion ; and the plaintiff joined in demurrer, and upon this demur-
rer the Chief Justice delivered the following opinion :
MARSHALL, Chief Justice. The only question in this case
is, whether an action at law can be maintained in this Court in
the name of a person who has become a bankrupt in a foreign
country? . -
In support of the action it is contended, that bankrupt laws
have no positive extra-territorial force, and that although other
nations will notice the rights which are vested by them, yet
they cannot give a form of action in a foreign country, nor en-
title a person to maintain an action, who by the laws of that
country could not maintain it. From this position it is inferred,
that although a foreign court will respect the right of the as-
signees to money due a bankrupt, yet that money must be sued
for according to the forms of the place where the action is
brought. - .
For the defendant, it is contended, that the right to personal
things is regulated by the law of the domicil, and not by the
law of the place where they happen to be found, and, conse-
quently, that the right to the effects of a bankrupt, wherever
they may be, unless the law of the place shall otherwise direct,
is vested in those to whom the law of his residence gives it. It
is also contended, that an action can only be maintained by him
who has the right, and that, consequently, no action can be main-
tained in the name of the bankrupt. The law of foreign na-
tions, it is said, constitutes a part of the law of every nation, so
far as to govern foreign contracts and foreign rights. f
In examining this proposition, that only the person having the
NOVEMBER TERM, 1803. 65
Blane v. Drummond.
right can maintain an action, it is necessary to be more definite
in the terms employed. If it is intended to say, that only the
person having the legal right can maintain an action at law, the
position is perhaps correct; but if it is intended to say, that the
person not having the equitable right to retain the money sued
for, cannot maintain an action at law, the truth of the proposi-
tion cannot be admitted. The common case of a bond not le-
gally assignable, sued for in the name of the obligee for the use
of his assignee, disproves it.(1) The proposition, too, that the
laws of foreign nations become a part of the law of every civiliz-
ed nation, is true to a certain extent. It is true, also, that, gene-
rally speaking, the rights to personalities are determined by the
law of residence, and not by the law of the place where the pro-
perty is found.(2) The right to claim the effects of a deceased
(1) By the law of Virginia, as it exists at the present day, assignments of all
bonds, bills, and promissory notes, and other writings obligatory, are valid ; and
an assignee of any such may maintain an action upon it in his own name, which
the original obligee or payee might have brought; but shall allow all just dis-
counts, not only against himself, but against the assignor, before notice of the
assignment was given to the defendant. [I R. C. of 1819, p. 484, § 5.] In
construing this section, the Court of Appeals of Virginia have decided that the
statute does not transfer the legal title to the debt to the assignee, but simply
adds the capacity to sue in his own name to the equitable right which he had
independently of the statute : Hence, notwithstanding the assignment, an action
may still be maintained in the name of the original obligee for the benefit of the
assignee, upon the strength of the legal title remaining in the obligee; the statute
upon this construction giving a new remedy without abolishing the old. Gar-
land v. Richeson, 4 Rand. 266–LEditor.] . -
(2) But in Harrison v. Sterry, 5 Cranch, 289. 2 Con. Rep. Sup. Ct. U. S.
260, Chief Justice MARSHALL said, that in the administration of the estate of a
deceased person, the assets are always distributed according to the dignity of the
debt as regulated by the law of the country where the representative of the
r deceased acts, and from which he derives his power ; not by the law of the
country where the contract was made. The law of the place where the contract
is made is, generally speaking, the law of the contract; that is, it is the law by
which the contract is expounded. But the right of priority forms no part of the
contract itself. It is extrinsic, and is rather a personal privilege dependent on
the law of the place where the property lies, and where the court sits which is to -
decide the cause. The principle here laid down is cited and approved by the
Vol. I.-I
66 VIRGINIA.
- Blane v. Drummond.
person in foreign countries is generally secured by treaties, but
the principle would probably be adopted independent of com-
pact. Whether the same principle extends to rights under bank-
* Supreme Court in Robertson’s Administrators v. The Union Bank of George-
town, 5 Peters, 518. The question, what law shall govern the distribution of
an intestate's effects among his next of kin, when there shall be a conflict
between the law of the domicil and that of the situs, did not arise in either
of the above cases; and in the last of them, Johnson, J., who delivered the
opinion of the court, said it would be time enough to decide that question when
it arose. This question did arise in Harvey v. Richards, 1 Mason, 408; and
Story, J., after a laborious examination of authorities, held it to be very clear that
the lear domicilii must prevail. See also Stultz, &c. v. Pulver, &c., 3 Paige,
182, and 2 Robinson's Practice, 126–7. See also opinion of the court delivered
by Mr. Justice Story, in Harrison et al. v. Nixon, 9 Peters, 503-4. In that case
the testator was born in Pennsylvania, and was a merchant in Philadelphia at
the breaking out of the revolutionary war, when he went to England, and resided
in Old Street, London. After the war, he came several times to the United
States, and made his will in Philadelphia, in 1791, which he deposited in the
old Bank of North America. By this will he gave the bulk of his property, real
and personal, to his “heir at law.” He died in London, in 1824. Without
determining the place of testator's domicil,—the court remanding the cause to
have amendments made to the bill, averring not only the citizenship, but the
domicil of the testator, at the date of the will, at the time of his death, and during
the intermediate periods, so that the elements of a full decision might be brought
before the court-Mr. Justice Story said that the court were called upon to
construe this will, “ and in an especial manner to ascertain who is meant by the
words “heir at law, in the leading bequest in the will. The language of wills
is not of universal interpretation, having the same precise import in all countries
and under all circumstances. They are supposed to speak the sense of the
testator, according to the received laws or usages of the country where he
is domiciled, by a sort of tacit reference; unless there is something in the lan-
guage which repels or controls such a conclusion. In regard to personality in
an especial manner, the law of the place of the testator's domicil governs in the
distribution thereof, unless it is manifest that the testator had the laws of some
other country in his own view.” - • +
With respect to real property, it is an acknowledged principle of law that the
title to, and disposition of it, are exclusively subject to the laws of the country
where it is situated, which can alone prescribe the mode by which a title to it
can pass from one person to another. Kerr v. Devisees of Moor, 9 Wheat.
565; McCormick et al. v. Sullivant et al., 10 Wheat. 192. See also, 3 Wheat.
212; 6 Wheat. 577; 2 Gallis, 105; 10 Wheat. 469; 12 Wheat. 153.--|Editor.]
NOVEMBER TERM, 1803. 67
Blane v. Drummond.
rupt laws, seems not to have been so well settled. But the per-
son having this right, according to the laws of a foreign country,
sues in conformity with the principles of jurisprudence estab-
lished in the country where the suit is brought. If according
to those principles any person having the right may maintain an
action, then it is sufficient to show that the person suing is en-
titled to the thing claimed, by the laws of the domicil. But if
those principles oppose any obstacle to the person suing on his
original right, he must give himself a character which will
authorise him to maintain his action.
Thus the haeres factus or natus of a Frenchman, claiming
personal property in England, has a complete title, and most
probably in France, where proceedings are according to the
forms of the civil law, might maintain an action for the pro-
perty of his testator or intestate. But the forms of jurispru-
dence established in England require, if he would proceed at
common law, that he should qualify himself according to the
requisites of the common law to maintain his action. He must
therefore take out letters of administration in England.
His right to the personal estate gives him a right to adminis-
ter, but does not give him a right of action before administra-
tion granted. The right to personal property then may be re-
gulated by the laws of the domicil; but the right of action must
be regulated by the law of the court where that action is
brought.(1) The question then is, whether the operation of a
bankrupt law can be such as to transfer to the assignees the legal
title or the right of action in debts due in a foreign country, or
to extinguish the legal title or right of action of the bankrupt?
If it affects the one or the other of these objects, the present
action cannot be maintained.
(1) The law of a place where a contract is made, governs as to the validity of
it, its nature and construction, but the remedy on such contract must be pursued
according to the law of the place where the suit is brought. Van Reimsdyk v.
Kane et al., 1 Gallis, 371. See also, Kerr v. Devisees of Moor, 9 Wheat., above
cited.—[Editor.] : -
68 VIRGINIA.
Blane v. Drummond.
The general proposition, that the laws of one nation may give
a form of action in the courts of another, or authorise a person
to maintain an action who could not maintain it by the princi-
ples of that forum to which he has applied, has been already
denied. The plainest principles of national law refute such an
idea, and it would be time utterly mispent further to demon-
strate its error. A debt, therefore, which, by the laws of Vir-
ginia is not assignable, cannot be assigned by the laws of any
other country, so as to enable the assignee to sue in this. The
right of property may be changed by those laws, but the right
of action cannot be given. Debts due by open account, there-
fore, cannot be sued for in the name of the assignees. Yet in
the country of the bankrupt, the assignees sue in their own
names for debts, in themselves unassignable by an act of the
party. This follows from the principle, that suits must be
prosecuted by virtue of the law of the country where they are
instituted, and not of that where the claimant resides. This
being true, the assignment, as well as the nature of the debt sued
for, must conform to that law. Not only must the debt be
assignable, but it must be assigned according to law. -
Bonds by the laws of Virginia are assignable, but they can only
be assigned by the act of the party himself. The declaration must
state a legal assignment in order to give the assignee an action.
A declaration, stating an assignment by virtue of the law of a
foreign country, would not be good, for that would be equally
effectual in the case of an unassignable debt. It then only re-
mains to inquire whether, if the assignees in this case had de-
clared on an assignment by the bankrupt, they could have given
in evidence the assignment made in conformity with the bank-
rupt law. .
This would be, by legal inference, totally to change the nature
of the fact itself; an operation which would require very plain
legal principles for its support. The counsel for the defendant
has cited a principle of which I supposed at the time he design-
ed to make this use. It is, that every subject is intended to
give his assent to an act of parliament. He did not, however,
NOVEMBER TERM, 1803. 69
Blame v. Drummond.
so apply it, nor could it be properly so applied, for this plain
reason, that the assent follows the nature of the act, and is only
an admission that it shall be an act of parliament, not that it is
in truth his personal act; nor can such an assent give the act an
extra-territorial force, or change the requisites of a law of a
foreign country respecting assignments. The admission, then,
of one of the counsel, that an action at law is not maintainable
in the name of the assignees, was correctly made; and it remains
to inquire whether such an assignment, without transferring a
right of action to the assignees, has extinguished that of the
bankrupt. - -
Upon principle, I cannot perceive any solid ground on which
the distinction taken can be maintained, or on which such ex-
tinguishment is to be supported.
To deprive a man, having a right to sue in a foreign country,
of that right, is giving to the law which would effect this object
an extra-territorial operation, which, I believe, has never been
admitted.
In this case it is the less allowable, because it would not be
to conform to the intention of the law itself. That intention is
one entire thing. The law takes the right out of the bank-
rupt, for the purpose of transferring it to his assignees; and
unless this transfer can be made, the intention of the law cannot
be effected.
To give a foreign legislative act an extra-territorial operation
which would defeat the intention of the act, would be peculiarly
improper. - '
The whole argument in favour of this proposition, so far as it
is merely an argument on principle, is, that only he who has the
right to the thing, can have the right of action ; but this is an-
swered by saying, that the rule is not universally true, because
nothing is more frequent than suits at law in the name of a per-
son, whom equity will compel to deliver over the property to
another. The common case of a suit in the name of the assignor
of an unassignable paper, is sufficient evidence of this position.
The right of action, distinct in different courts in the same
70 VIRGINIA.
—-4
Blane v. Drummond.
country, is of course distinct in different countries. The de-
fendant attempts to get over this common case, by saying that the
common law takes no notice of such assignments, but the coun-
sel does not recollect that assignments under the bankrupt law
must be equally unnoticed by the common law courts of a for-
eign country, or the assignees would be permitted to sue in that
foreign country.
These laws are said to be noticed, and the rights they give pro-
tected, in pursuance of that courtesy which one nation pays to
the institutions of another. But this courtesy extends only to
the substantial rights of the parties, and not to the forms of
action, and would display itself very ungraciously indeed, in
denying the foreigner an action in any form. -
The defendant states the bankrupt law to operate by way of
contract between the bankrupt and his assignees. This is very
probably correct; but a contract, not being an actual assignment,
cannot divest the contracting party of the legal right of action
which was vested in him.
The situation of a right without a remedy, is so unusual, that
the counsel for the defendant has thought it necessary to state
several cases, showing that it may exist. The cases put are
those of a release of all actions, of an alien, of an outlaw, and of
a person excommunicated.
That it is within the compass of the legislative power of any
country to deprive a person having a right, of a particular remedy,
or of any remedy whatever within its own territory, is not ques-
tioned. But the cases put are understood to apply to that before
the Court, very differently from the manner in which they have
been applied. -
In the cases put, the law operates according to its intention.
In the case at bar, the law would not so operate. But what is of
more importance, is, that in the cases put, so far as they could
occur in a foreign country, the party might sue in his own
Ila Iſle,
It is a settled principle, that disabilities to sue affect the party
only in the courts of the country imposing them. They do not,
like natural defects, adhere to the person, and pass with it to dis-
NOVEMBER TERM, 1s03. 71
Blane v. Drummond.
tant regions, but fall off when he travels out of the jurisdiction
which has imposed them. I believe no man doubts that a person
excommunicated, or outlawed in a foreign country, might main-
tain a personal action in this.
The argument, that the act operates by way of estoppel, can-
not be admitted, without agreeing that a foreign law has a posi-
tive operation, and at the same time giving it an operation
contrary to its intention. t
Upon principle, then, I should feel not much difficulty in
saying that the suit is maintainable in the name of the bankrupt.
The cases cited do not change this opinion. They only sup-
port principles which have already been considered, and which
do not defeat the action. The only circumstance which excited
doubt in my mind, was the practice of suing in chancery in the
name of the assignees, in cases of foreign bankruptcy. I
thought it strange, that no case should have occurred, where a
suit was instituted in the name of the bankrupt himself, if such
a suit was thought to be maintainable. I still think so. But
this is accounted for, perhaps, by a general disinclination to use the
name of the bankrupt, by the authority of the chancellor over
bankrupt cases, and by the point never having been doubted.
- Demurrer to the plaintiff’s replication overruled, and judgment
for the plaintiff.
72 VIRGINIA.
Owen v. ADAMs, Surviving Partner of HUNT & ADAMs. -
Before Hos. JoHN MARSHALL, Chief Justice of the United States.
An account taken from the books of a merchant's clerk, who is dead, is not.
admissible evidence in an action on account, unless such books were the origi-
nal books of entry, and kept by a clerk who could have proved, if living, the
delivery of the goods: and his hand-writing must also be proved. Where such
an account is offered, collateral testimony, as, for example, a letter from the
defendants, acknowledging in general terms a balance due the plaintiffs, will
not be admitted to verify an account which would be otherwise inadmissible.
It must apply to the account itself, and not merely to general transactions,
which have no tendency to verify the particular account produced, but would
equally support a claim for a small or large amount.
[The record in this case having been lost or mislaid, the
reporter is precluded from furnishing a statement of the facts
elicited in the cause. As the following opinion, however, dis-
cusses a very important question of evidence, he has thought it
advisable to insert it, especially as the question is purely a
legal one.]
MARSHALL, C. J. In this case the plaintiff, who is a London
merchant, offered in evidence an account taken from his books,
which commenced in the year 1784, connected with a receipt
signed “ Hunt and Adams,” for a box delivered in January
1785, and a letter from the same individuals, dated in June
1790, mentioning a remittance then made in snuff, and acknow-
ledging a further balance to remain due in terms which imply
that balance to have been by no means inconsiderable. The
books from which the account was taken, are proved to have
been kept by a clerk who is since dead; and the account is
proved to be an exact copy from those books. Another witness
swears that he has compared the account with the original
entries, and that it corresponds with them, but he does not depose
to the hand-writing in which those original entries are made.
NOVEMBER TERM, 1803. 73
Owen v. Adams.
The plaintiff contends, that under these circumstances, the
account may be submitted to the consideration of the jury.
This question depends entirely on the law of evidence, and
as no legislative provision has been made for the case, it is sup-
posed to be governed by the rules of the common law.
The common law on this subject is believed to have been laid
down with perfect accuracy by Mr. Blackstone, in his Com-
mentaries, Vol. iii. p. 368. “So, too,” says that author, “books
of account, or shop-books, are not allowed of themselves to be
given in evidence for the owner ; but a servant who made the
entry may have recourse to them to refresh his memory, and if
such servant, who was accustomed to make those entries, be
dead, and his hand be proved, the book may be given in
evidence.” -
This apparently relates to original entries, not only because
the principle, that the best legal evidence which the nature of
the thing affords must be produced, is directly recognised by
Blackstone, while speaking on the same subject, but because the
expression that “the servant who made the entries might refer
to the book to refresh his memory,” plainly designates such a
servant as could have proved the delivery of the goods. The
counsel for the plaintiff has not controverted this principle of
law, but has contended that the clerk who is dead, in this case,
was the person by whom the original entries were made. Pri-
vately, I am inclined to believe the fact to have been so, but I
do not feel myself at liberty to deliver that opinion in this place.
Exact uniformity of decision ought to be observed; and when
principles are departed from, those substituted in their place
ought to be so strongly marked, as not afterwards to be mis-
understood. In this case, the term “books” is used; and if that
term might be understood to mean all the books, or the original
books of entry in this case, it ought so to be understood in every
case, and then the rule would be completely changed.
Neither do I think the form of the entries, evidence that the
original books were kept by the clerk who is dead.
This essential fact, on which the admissibility of the account
Vol. I.-K.
74 º VIRGINIA.
Owen v. Adams.
depends, ought to be plainly stated by the party who woul
avail himself of that account.(1)
Neither do I think the collateral testimony which has been
offered, can help the case. That testimony shows the existence
(1) “The evidence of an entry,” says Mr. Starkie, in his treatise of the Law of
Evidence, Vol. I. p. 72., “has in some instances been admitted where the party had
the peculiar means of knowledge, and made it in the course of a particular routine
of business, at the same time, or nearly so, with the supposed act.” -
“In Lord Torrington’s case, 1 Salk. 285, 2 Lord Ray. 873, S. C., the evidence
was, that according to the usual course of the plaintiff’s dealings, the draymen
came every night to the clerk of the brewhouse, and gave him an account of the
beer delivered out, which he set down in a book, to which the draymen set their
hands; and that the drayman, was dead, and that the entry was in his hand-writing ;
and it was held to be good evidence of a delivery. Here, the admissibility of the
entry did not depend upon the mere credit given to the drayman, so much as upon
the consideration that the entry was made in the usual course of business, and
was contemporaneous with the supposed delivery: where, on the contrary, Clerk v.
Bedford, B. N. p. 282, the plaintiff, to prove a delivery, produced a book which
belonged to his cooper, who was dead, but his name set to several articles, as wine
delivered to the defendant, the evidence was rejected by Lord Raymond, who dis-
tinguished it from Lord Torrington’s case, because there, the witness saw the dray-
man sign the book every night. In these cases it is observable that, in the one,
the whole rested entirely on the veracity of the party who made the entry; in the
other, a presumption as to its truth arose from the time of the entry, and th
fact, that it was made in the usual and ordinary course of business.” r
And again, at page 315 of the same volume, Mr. Starkie says: “In the case of
Pitman v. Madox, I Lord Ray. 732, 2 Salk. 690, in an action upon a tailor's
bill, a shop-book was produced, written by one of the plaintiff’s servants, who was
dead; and upon proof of the death of the servant, and that he used to make such
ent £es, it was allowed to be good evidence of the delivery of the goods. From
these cases it may be inferred that some evidence ought to be given to show that
such entries were made in the usual routine of business; but perhaps, it may not
be necessary, as in Lord Torrington’s case, to prove the signature by one who saw
it written.” - -
In Welsh v. Barrett, 15 Mass. Rep. 380, the book of a deceased messenger of a
bank in which, in the course of his official duty, he entered memoranda of de-
mands on the makers, and notices to the endorsers, of notes left in the bank for
collection, was admitted as evidence of a demand on the maker, and notice to the
endorser, in an action on a note thus left for collection, the memorandum being
first proved to be in his hand-writing. Chief Justice Parker said, that this was .
analagous to the case of a deceased merchant’s clerk, and there could be no good
NOVEMBER TERM, 1803. 75
Owen v. Adams.
of a debt, but not its amount. The plaintiff can only be admit-
ted to establish its amount by legal evidence; and to make his
books legal evidence, he ought to prove, that the clerk who
made the original entries is dead. It would be as dangerous to
admit a plaintiff to establish the amount of a debt by his books,
as to prove the existence of the debt by the same evidence. I
therefore felt no doubt when this case was first mentioned, in
determining the testimony to be inadmissible, if it was a case of
the first impression in this Court, and if I could draw it out of
the case of Lewis, executor of Thruston, v. Norton.
A case was referred to as having established the admissibility
of such testimony; but on a reference to the record, it appeared
that the books from which the copy had been taken, were the
original books, or the books in which the original entries had
been made, and the clerk who kept them was dead. The terms
used were considered as synonymous with shop or day-books;
and that decision will be adhered to. -
I had much more difficulty in getting over the case of Lewis
v. Norton, and was at first disposed, under the authority of that
case, to permit the present verdict to stand, although directly
against my own opinion. But, upon reflection, I think myself
obliged to change that opinion, and to set aside this verdict. I
feel no doubt concerning the law of the case. I have no doubt
but that the amount of the debt can only be established by tes-
timony, which is in itself legal; and that such collateral testi-
mony as will make an account, otherwise inadmissible, legal
testimony, must apply to the account itself, and not merely to
reason why proof of entries made by the messenger, in the case at bar, should not
be received as evidence in a case proper for the admission of a merchant's
books as evidence. This case was cited and approved by the Supreme Court, in
Nicholls v. Webb, 8 Wheat. 326; 5 Con. Rep. 451; and the court held that, a
fortiori, the books of a notary public, (who is a public officer) which are proved to
have been regularly kept, are admissible in evidence after his decease, to prove a
demand of payment, and notice of non-payment of a promissory mote. In con-
formity with these decisions is the case of Halliday v. Martinet, 20 Johns. Rep. p.
168,-(Editor.] *.
76 VIRGINIA.
Owen v. Adams.
general transactions, which have no tendency to verify the par-
ticular account produced, but would equally support a claim for
32100 or £1000.
I think it of most dangerous tendency to admit such evidence;
and, as there is a difference between decisions which merely
respect the rules of evidence, and those which affect rights, and
also between a single decision subject to revision, and a series of
decisions, which may be considered as fixing the law of the
land, and as it is, in my opinion, of much importance that exact
uniformity should be observed in decisions on that testimony
which will be required by the Court, in order to support a claim
on account, which is but to be obtained by an inflexible obser-
vance of the rules established by law, and not by deviating occa-
sionally from them, on circumstances perpetually varying in
slight, unimportant degrees, I think it right to adhere to the
safe and well-understood rules of the common law, and shall
therefore direct a new trial in this case.
The following order was accordingly made: -
“On the motion of the defendant by his attorney, and for
reasons appearing to the Court, it is ordered that the judgment
upon the verdict of the jury rendered in this case on Monday,
the 23d ultimo, be set aside: and that a new trial be had therein
at the next Court; and general commissions are awarded the
parties to examine and take the depositions of their witnesses
in this cause residing in Great Britain : which commissions are
to be taken before any notary public duly authorized, each party
giving unto the other reasonable notice of the time and place of
executing the same. -
Çirtuit Cottrf of the ºſſmittiy Sºtates,
VIRGINIA, MAY TERM, 1805.
BEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
HoN. CYRUS GRIFFIN, District Judge. $
CoRBET ET AL. Assignees of MINZIEs v. JoHNson’s HEIRs
- E.T A.L.
At law, a bond creditor has his election to proceed either against the heir or
executor, but if he comes into equity, and proceeds against the heir or devisee, he
must join the executor in the suit, and he must exhaust the personal estate of the
debtor in the hands of his legal personal representative, before the lands will
be subjected. But if the personal fund has passed into other hands than those of
such legal personal representative, he is not bound to pursue it further, and the
court will proceed to decree directly against the land: Therefore, when a
bond debtor died, having appointed two executors, both of whom qualified, and
one of them died, having a portion of his testator's estate in his hands, and
his co-executor afterwards died, whose executor became the executor of the
first testator, and a bill in equity was filed by the bond creditors, against the
heirs and devisees, and the executor of the surviving executor of the debtor,
the court refused to compel the plaintiffs to join the representative of the
executor who first died, in the suit, (although that executor was responsible
for a portion of the personal estate of the bond debtor), and decreed a sale of
the land derived from him; it appearing, that the personal assets in the hands
of the legal personal representative were exhausted.
78 VIRGINIA.
- Corbet et al. v. Johnson's Heirs.
THE bill in this case was filed by Cunningham Corbet and
others, assignees of Ninian Minzies, against the heirs and
devisees of Edward Johnson, deceased, and also against William
Wiseham, executor of Andrew Ronald, who was the surviving
executor of Edward Johnson, to compel the payment of two
bonds, executed by the said Johnson, in his life time, to Minzies,
which bonds were assigned by Minzies to the plaintiffs, for the
benefit of his creditors. Edward Johnson, by his will, appointed
William Ronald and Andrew Ronald his executors. Both of
the executors appointed by the will of Edward Johnson quali-
fied and acted as such. The report of the commissioner appoint-
ed to settle the administration account of Andrew and William
Ronald, showed a balance due by William Ronald to the estate of
his testator of £3179 1s. 4d., and that the estate of Edward.
Johnson owed the estate of Andrew Ronald .964 15s. 10d.
William Ronald died intestate, before his co-executor, and after-
wards Andrew Ronald also died, having appointed the defendant
Wiseham his executor, who, as such, was the executor of Ed-
ward Johnson. Both William and Andrew Ronald were dead
before the institution of this suit, and the representatives of
William Ronald were not made parties thereto. The heirs and
devisees of Edward Johnson, who were also his children, in
their joint answer, referred to the copy of the bond of the co-
executors of Edward Johnson, and to the report of a commis-
sioner on their administration account, showing that a balance
more than sufficient for the discharge of the plaintiff’s debt was
due from them to Edward Johnson’s estate, and insisted that the
plaintiffs’ debt, which was of the first dignity, should be satisfied
out of the personal estate of their ancestor, and to this end that
the personal representatives of William Ronald, and the sureties
in the executorial bond, should be made parties defendants, and
be subjected to the payment of this debt, claiming exemption for
the real estate derived from Edward Johnson, until recourse was
had to his personal estate into whatever hands it had passed.
On the question raised in the answer, as to the proper parties to
this bill, the following opinion of the Court was delivered by
MAY TERM, 1805. 79
Corbet et al. v. Johnson’s Heirs.
*=-
MARSHALL, C. J. The material question in this case is, how
far a bond creditor, coming into a court of equity to subject.
lands to his debt, will be compelled to pursue the personal
estate, before the lands shall be applied to the satisfaction of his
claim.
At law, he has his option to resort to either fund. Originally,
it appears to have been deemed necessary first to exhaust the per-
sonal estate ; but from the time of Edward IV., it has been held,
that the creditor may elect to sue either the heir or the executor.
The cases on this subject are reviewed by Powell(1); and since
that period, it has been uniformly decided, that “assets in the
hands of the executor at the time the writ was sued out” is no
plea in bar to an action of debt against the heir.
But although the creditor has this election, if he chooses to
proceed at law, yet if he comes into a court of equity, he must
conform to its rules. One of these is, that the executor shall be
joined in the suit. For this rule, two reasons are assigned —
1st. That he may contest the claim.
2dly. That the personal fund out of which a reimbursement.
would be decreed to the heir, may be applied in the first instance
to the payment of the debt. - -
That the legal, personal representative of the first testator
must, therefore, be joined in a suit brought on the chancery side
in this court by a creditor against the heirs, seems to be univer-
sally conceded. -
So far as the question, whether the personal estate must be
pursued into other hands than those of the legal representative,
depends upon principle, it is urged that one of the reasons on
which the rule was adopted, applies with equal force to its
extension so far as to require that the personal fund should be
exhausted before recourse is had to the real.
In a court of equity the effects of the testator may be pursued
into the hands of every person whatever; and all those who
hold any portion of his estate may be brought before the court
(1) 2 Powell on Mortgages, 777-8, and Mr. Coventry’s note, (E.)—[Editor.]
80 VIRGINIA.
Corbet et al. v. Johnson's Heirs.
in the same suit. If the executor must be brought into court
because, among other reasons, he would be responsible to the
heir, so any person possessing the personal fund, who would be
responsible to the heir, and who can be brought into court,
ought, for the same reason, to be associated with him in the suit.
It is equitable and convenient, that the person who must ulti-
mately pay the debt, should be decreed to pay it in the first
instance. :
For the plaintiff, it is contended that the creditor, having a
legal right to pursue the heir, equity will respect that right, and
will only impose upon him, when he comes into this court, such
conditions as are reasonable, and as will not injure his rights.
The legal representative may be brought before the court
without much delay or inconvenience; but if the plaintiff is
compelled to go beyond the legal representative, if the various,
intricate, and multiplied questions which must be settled in
determining by whom and in what proportions the debt is
ultimately to be paid, are all to be discussed before he receives
a debt acknowledged to be due, and to pay which adequate funds
are acknowledged to be in the hands of the debtors, he will
experience delays which are incalculable; and thus the rule of
equity will work a real wrong to a person possessing a plain
title both in law and equity.
These arguments on both sides are entitled to great respect,
and a course of decisions, the one way or the other, might be
defended by reasons perfectly satisfactory. In whichever way
the principle may have been settled, there are no inducements
for shaking the decisions which have been made.
The case from 3 Atkyns (2), lays down the general rule as
it has been stated. But that case contemplates the general rule
under its usual circumstances only, not when it comes in conflict
with other principles which are also regarded. Lord Hardwicke
contemplated merely the legal, personal representative of the
deceased, and the case of both an heir and executor legally
(2) Madox v. Jackson, 3 Atkyns, 406.-[Editor.]
W
MAY TERM, 1805. 81
Corbet et al. v. Johnson’s Heirs. .
accountable to the creditor. The personal fund, under such
circumstances, must be first exhausted. But what the opinion
of Lord Hardwicke would have been when the personal fund
was not in the hands of the legal, personal representative, cannot
be asserted from the case from Atkyns.
The case cited from 3 Peere Williams (3), is of the same
character with that from 3 Atkyns. It lays down the general
principle, so far as respects the heir and executor. The reason
given for the principle would certainly favour strongly the
argument on the part of the heirs. A court of equity, said the
chancellor, delights to do complete justice, and not by halves ;
as, first to decree against the heir, and then to put the heir upon
another bill against the executor to reimburse himself out of the
personal assets. Where the executor and heir are both brought
before the court, complete justice may be done by decreeing
against the executor, so far as the personal assets extend ; the
rest to be made good by the heir out of the real assets.
These expressions are, it is true, precisely applicable to the
case at bar. But the counsel who produced this case has very
correctly observed, that general principles declared in a particu-
lar case, must be taken with some reference to the case in which
they are declared. The mind of the judge is fixed upon the
circumstances of the case before him, and the abstract principles
he lays down, must receive some limitation from these circum-
stances. The words of the chancellor, which follow those
which have been quoted, seem to give this argument a peculiar
application to the case from Peere Williams. “And here,”
says Lord Talbot, “appears no difficulty or inconvenience in
bringing the executor before the court.” This observation
seems to warrant the opinion, that Lord Talbot would have
allowed weight to arguments drawn from the difficulty or
inconvenience of pursuing the personal fund.
The principles laid down in the books of practice respecting
the necessary parties to a bill, are drawn from partieular deci-
(3) Knight v. Knight, 3 Peere Williams, 331-4, and note, (A):-IEditor.]
VoI. I.-L
82 VIRGINIA.
Corbet et al. v. Johnson’s Heirs.
sions which are referred to. It is laid down in those books, that
all persons materially interested in the subject of a suit, ought
to be parties to it; and an instance put in illustration of this rule,
is that of a bill against the heir alone, where the personal estate
is first liable for the demand. The case from 3 Peere Williams
is referred to as authority for this rule, and that case relates to
the legal representative. -
But how are the real or personal estate of William Ronald
interested in the subject of this suit? They are neither con-
cerned in the demand, or interested in the relief prayed. Their
responsibility can neither be increased nor diminished by any
decree which is rendered in it. In the common case of the
heir and executor, the claim of the heir on the personal estate
may depend on the establishment of the claim against the real
estate. In such a case as this, the representatives of William
Ronald owe a certain sum for which they are liable, whether
this claim be established or not. Upon the ground of interest,
then, there can be no necessity for making them parties; it is
only on the principle that they must ultimately account to the
heir; and, therefore, ought to be brought, in the first instance,
before the court. This restores the original question, how far
and into what hands the creditor is obliged to pursue the per-
sonal estate.
It appears to have been frequently decided, that he must
exhaust it in the hands of the legal, personal representative ; but
never, that he is compelled to pursue it into the hands of others.
Yet in the infinite variety of situations into which personal
assets are thrown, it is scarcely conceivable that cases have not
occurred where the heir was sued, and the personal estate was
not exhausted in a legal course of administration, though nothing
should remain in the hands of its legal representative. The
reasoning, however, for extending the principles laid down
respecting the personal fund, to the case of its being found in
the hands of a person who may be considered as the equitable,
though not the legal representative, is very strong; and the
ar
MAY TERM, 1805. 83
*--—
Corbet et al. v. Johnson's Heirs.
court would have been relieved by finding, that authorities relied
on against so extending it, were decisive.
The case from Equity Cases abridged, (4) which is reported
in Viner, is an express case of a decree against lands in the
first instance, leaving the heir to pursue the personal estate.
It is said that the decree being given without its circumstan-
ces, it must be supposed that the personal estate was absolutely
exhausted. This may have been the fact, but, certainly, it can-
not be assumed as a fact. If the presumption was absolutely
necessary to account for the decree, it would be made; but to
pronounce it absolutely necessary, presupposes what is to be
proved,—that the law is with the defendants.
But this case was decided twenty years before thatreported by
Peere Williams, and four years before that reported by Atkyns.
The probability therefore is, that it was decided before the prin-
ciple, that the personal estate should be first applied in ease of
the real, and that the creditor should not be at liberty to resort
directly to the heir, leaving him to take his remedy against the
executor, was firmly established. This consideration certainly
deducts from the authority of that case. •.
The case from 3 Vezey, Jr.,(5) is a question respecting the
order in which the real fund shall be applied by a court
of equity, without containing any instructions as to the neces-
sity of pursuing the personal fund into the hands of other than
those of the personal representative, before the creditor can re-
sort to the real. The sentiment with which the case closes, re-
lates to the absolute final rights of parties, not to the necessity of
proceeding against all persons who may be made liable, or to the
right of electing to confine the suit to those who are immediately
liable, without joining those who may be afterwards account-
able. :
The case from 2 Vezey, Jr.,(6) is a mere question of inten- .
(4) This is the case of Duncombe v. Hansley, reported in a note A, 3 P.
Wms. 333, above cited. 2 Eq. Ca. ab. Tit. Bills, $ 25, note d.—[Editor.]
(5) Manning v. Spooner, 3 Vez, Jr., 114.—[Editor.]
(6) Hamilton v. Worley, 2 Vez, Jr., 62-[Editor.]
84. VIRGINIA.
Corbet et al. v. Johnson's Heirs.
tion in the construction of a will. In deciding that question,
the chancellor says, “the court affords an equity to a person
entitled to a real estate by devise, to have the incumbranees upon
it discharged as a debt out of the personal estate. That can go
no further than this; as between the heir or devisee, and the
residuary legatee. It cannot interfere with the disposition of
other parts, as specific or general legatees, much less with the
interests of creditors.” -
The counsel for the plaintiff understands this declaration as
relating to the right of the creditor to pursue one fund or the
other singly, at his election. The court does not so understand
it. The question there, was whether the devisee of a mortgaged
estate might resort to the personal estate for its exoneration.
The court declares this right to be limited to the case of a resi-
duary legatee, and not to extend to cases of specific or general
legacies, much less to the case of a creditor: that is, where the
personal fund is necessary for the payment of debts.
No case, then, has been cited from the English books which
is an express authority for this case. }
It has already been suggested, that the very circumstance of
there being no case in which it has been decided, that the per-
sonal fund must be pursued into other hands than those of the
legal representative, is a strong argument against its being ne-
cessary. The court of equity has introduced a principle which
limits the legal right of the creditor to elect the fund to which
he will resort. That principle has only been carried to a cer-
tain extent, and if extending it further would impair complete
and perfect rights, there is reason to believe that those courts will
not extend it further. With respect to the creditor, unless it
be for his advantage, the personal estate may be said to be ex-
hausted, when there are no longer assets in the hands of the exe-
cutor. -
Although the English authorities do not reach the case, the
decision of this court in the case of Main v. Murray, is supposed
to comprehend it. On inspecting the demurrer in that case,
it appears not perfectly clear, whether this question was fully
MAY TERM, 1805. 85
Dunbar v. Miller, Hart & Co. r
before the court or not. The devisees allege themselves not
to be responsible for the malversation of the executor of James
Murray, the devisor. And this would seem to involve the
point. Gentlemen who were concerned in it can best say how
far this question was brought before the court. (7)
The Court, at present, inclines to consider this case as an au-
thority, but if, on a more minute investigation, it should not be
so, still the Court is not inclined, in a case where the contro-
versy between those into whose hands the personal estate has
passed, is so intricate, diversified and complicated, to extend
the principle further than it ever has been extended, and to
postpone the creditors till their disputes shall be settled.
DECREE. Sale of the real estate in the hands of the heirs an
devisees decreed. *
DUNBAR v. MILLER, HART & Co.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
HoN. CYRUS GRIFFIN, District Judge of the United States.
P. H., residing in Richmond, Virginia, of the firm of M., H. & Co., London
merchants, wrote to R. D., on the 5th of September, 1793, a merchant of
Falmouth, Virginia, informing him of the arrival in James' river, of the ship
Molly, chartered by M., H. & Co., to load with tobacco to be shipped to
Europe, consigned to M., H. & Co., and advising R. D. to embrace this
favourable time and opportunity, as he deemed it, of shipping tobacco to Eu-
rope. The vessel, he said, would “go to Cork for orders, and from thence to
(7) In the case of Main v. Murray, in this Court, (November Term, 1799,)
Judge Washington presiding, the devisees demurred, and the demurrer was over-
ruled.—[Editor.] -
S6 VIRGINIA.
Dunbar v. Miller, Hart & Co.
any port in Europe, out of the straits.” In another part of his letter, he in-
formed R. D., that “if peace is not established in France, by the time the
Molly arrives at Cork, it is most probable she will be sent to Rotterdam, or
some portin Holland.” On the 19th of the same month, R. D. wrote in reply,
after informing P. H. that he had sent 58 hogsheads to be shipped by the Molly,
—“I hope the tobacco will go to a saving market, as the quality is well suited
to the Dutch market, where I expect it will ultimately go, as appearances, I
conceive, strongly indicate a continuance of the war.” The Molly arrived at
Cork, about the end of the year 1793, when M., H. & Co. determined to send
the tobacco to France, the war still continuing, and accordingly consigned it
to a mercantile house in Havre. After experiencing great delay and difficulty
in obtaining the account of sales, from the consignees in Havre, and using every
effort to get from them the proceeds of sale, M., H. & Co. finally, in 1803,
consented to a compromise, whereby R. D. was only entitled to £142 4s., after
deducting costs, commissions, &c., for his proportion of the proceeds of the
cargo of the Molly: It seems, That although it was clearly the understanding of
R. D., that his tobacco would not be sent to France, should the war continue;
yet his letter did not amount to a positive instruction, which would deprive the
consignees, after the arrival of the tobacco in Cork, of the discretion of send-
ing it to France, if they should deem it advisable for the interests of the con-
signor to do so. At all events, if the consignor objected to this destination
being given to his tobacco, it was his duty to have informed the consignees of
it, and his silence, after he was apprised of its destination, was an implied
sanction and approval of the act of the consignees of which he had no right to
complain, after the speculation proved to be disastrous. It seems, however,
that only half commissions are chargeable by the consignees in such cases.
Where extensive and complicated dealings have been carried on between mer-
chants, which have been closed by a settlement of their accounts, and a note
has been given by one of them for the amount appearing due on such settle-
ment, a court of chancery may open such settlement for the purpose of cor-
recting any errors which the parties may have committed. But see Brydie's
executor v. Miller, Hart & Co., reported in this volume.
THIS was a motion to dissolve an injunction obtained by the
plaintiff, to restrain the defendants, Miller, Hart & Co., from
issuing an execution on a judgment rendered on the law side of
this court in their favour, against the plaintiff here.
Robert Dunbar, a merchant living in Falmouth, Virginia,
having for a series of years had extensive dealings with Miller,
Hart & Co., London merchants, on a settlement of their ac-
counts, on the 28th of June, 1796, executed his note to them
for the amount appearing due on such settlement, which was as
follows :
MAY TERM, 1805. 87
Dunbar v. Miller, Hart & Co.
“ Falmouth, 28th June, 1796.
“Eighteen months after date, I promise to pay to the order
of Messrs. Miller, Hart & Co. of London, $8273, for value
received, with interest from the date. -
“RoPERT DUNBA.R.”
“N.B. 58 hogsheads tobacco, weighing 66,503]bs., shipped
Miller, Hart & Co., in Sept. '93, per the Molly, Capt. Sanford,
for which sales are not received, to be accounted for, and to be
deducted from the above note when received account of sales
appear.” . . . t
At the November Term of this Court, 1800, Miller, Hart
& Co. obtained a judgment against Robert Dunbar, for the
amount of the above recited note, to be discharged by the pay-
ment of $7668 75, with interest from the 8th of August, 1798.
The reduction of the amount of this note, was effected exclu-
sively by payments made by Robert Dunbar, to Miller, Hart
& Co., subsequent to its date, and no credit was allowed on the
judgment for the price of the 58 hogsheads of tobacco referred
to in the memorandum annexed to Dunbar’s note, the account
of sales not having been received at that time. The history of
the transaction touching this tobacco, is as follows: -
On the 5th day of September, 1793, Patrick Hart, of the
firm of Miller, Hart & Co., living in Richmond, Virginia,
addressed the following letter to Robert Dunbar, at Falmouth,
Virginia : - -
“DEAR SIR, -
“I wrote you last post, since which I have advice of the
arrival of the Molly, Capt. Sanford, an American bottom, char-
tered by Miller, Hart & Co., to load tobacco from their friends,
at nine guineas per ton, two shillings and three pence port
charges. She loads at City Point, goes to Cork for orders, and
from thence to any one port of Europe, out of the straits
88 VIRGINIA.
Dunbar v. Miller, Hart & Co.
You may have what room in her you want, shipped to their
address on these terms, which is above five shillings per hogs-
head lower than any has been chartered at this way. As I think
you will have no chance to sell, till the war is over, it is surely
your interest to ship while the weather is good, and a chance
of its getting to market in proper time. If peace is not esta-
blished in France, by the time the Molly arrives at Cork, it is
most probable she will be sent to Rotterdam, or some port in
Holland; but to give her a chance of going there, she must be
loaded in all this month, which I intend at all events to do,
as I can get plenty of freight this way. Should we not have
enough of our own to fill her, I expect you will immediately
ship the 60 hogsheads you mention. You may look out a craft
and get them on board. My letters from Miller, Hart & Co.
do not say, whether the ship loads at City Point, or Norfolk ;
but suppose the former. I will advise you by next post, which
will be as soon as you can have the tobacco in the craft. ' I will
keep room for you for 100 hogsheads, as I think it your in-
terest to ship it, but you will say by Monday’s mail, whether
or not you will ship it.”
On the 19th of the same month, Robert Dunbar wrote in
reply to the above letter : “This hands you two receipts and
invoice of 58 hogsheads of tobacco, shipped to the address of
Miller, Hart & Co., which I hope will go to a saving market,
as the quality is well suited to the Dutch market, where I ex-
pect it will ultimately go, as appearances, I conceive, strongly
indicate a continuance of the war.”
The Molly, having taken in her cargo, sailed for Cork, where
she arrived about the latter part of 1793. Miller, Hart & Co.,
on the arrival of the ship in Europe, determined, on consulta-
tion, to send the tobacco to Havre in France, while the war yet
continued, and accordingly consigned it to the house of Jean
Baptiste Teray & Co., of that place. The speculation proved
to be a very unfortunate one. The account of sales rendered
by Miller, Hart & Co., of Dunbar's tobacco, which was dated
MAY TERM, 1805. 89
Dunbar v. Miller, Hart & Co.
sº-
31st January, 1803, after deducting therefrom the freight, com-
missions, and other charges, left a balance in favour of Robert
T]unbar of £142 4s. " *s
The deposition of James Colquhoun, of the firm of James
and Robert Colquhoun, of London, stated, that his firm were
consignees of 250 hogsheads of tobacco, part of the cargo of the
ship Molly, shipped in Virginia, by R. and W. Colquhoun of
Petersburg, about October, 1793, with which she arrived at
Cork in the month of December of the same year, for orders,
and that the advices from France were so encouraging at that
time, as to induce the house of J. & R. Colquhoun to agree with
Miller, Hart & Co. to send the ship Molly and cargo to Havre,
as being, from every appearance at that time, the best market for
tobacco in Europe; that he was privy to the correspondence of
Miller, Hart & Co. with J. B. Teray & Co. of Havre, to whom
the said cargo was consigned, and consented to the same, and
was fully satisfied that every thing was done by Miller, Hart &
Co. which was possible to get the best price and speedy remit-
tance ; that after long delay and much correspondence, he con-
sented to compromise on behalf of his firm with Teray & Co. in
the latter end of 1802, and to take for the cargo of the Molly,
of 627 hogsheads of tobacco, the sum of 130,000 livres, of
which his house received of Teray & Co. 51,502 livres, being
their proportion agreeably to the invoice weight of their 250
hogsheads of tobacco.
The difference of exchange on payments made by Dunbar to
Miller, Hart & Co. in favour of the former, previous to their
judgment against him, was shown to be $382 83, for which Dun-
bar was not allowed a credit. -
The commissioner also reported a balance in favour of Dunbar
of £286 17s. 4d., resulting from errors and miscalculations of
interest when the settlement took place between the parties.
The plaintiff prayed to be allowed a credit on the judgment
against him. - - - -
1. For £717 8s. 7d., the invoice price of his tobacco with
interest.
Vol. I.—M
90 VIRGINIA.
Dunbar v. Miller, Hart & Co.
2. For the difference of exchange on payments made before
judgment. r - - .
3. For the balance appearing in his favour in the commis-
sioner’s report. * -
The opinion of the Court was delivered as follows, by
MARSHALL, C. J.-The principal question in this case is:
What is the complainant entitled to for the tobacco consigned by
him to Miller, Hart & Co. in Sept. 1793. -
In duscussing this question he has made two points.
1st. That in shipping the tobacco to France his orders were
violated; in consequence of which, the consignees are responsi–
ble for its value. -
2d. That the account of sales they now render ought not to
bind him. - -
The nature of the trade between the consignor and consignee
of tobacco, requires that a great degree of confidence should
be placed by the former in the intelligence and integrity of the
latter. He is frequently empowered to choose the market in
which the commodity is to be disposed of. This arises from the
circumstance that his situation enables him to decide on the
interests of the consignor with better information than the con-
signor can decide for himself. A great latitude is therefore
allowed for the exercise of his judgment, but it must be exer-
cised within the limits prescribed by the consignor, or, where he
is silent, within those prescribed by custom. -
In the case at bar, the limits prescribed by the consignor are
to be looked for in the two letters of the 5th and 19th of Sep-
tember. * - -
The letter of the 5th contains the proposition of the con-
signee. He offers to receive consignments to Miller, Hart &
Co. in the Molly. This vessel, he says, “goes to Cork for
orders, and from thence to any one port of Europe out of the
straits.”
This is a plain intelligible proposition, which authorized the
consignee to order the vessel to France or elsewhere in Europe,
provided it was not into the Mediterranean. It is observa-
MAY TERM, 1805. - 91
Dunbar v. Miller, Hart & Co.
ble, that Mr. Hart then proceeds to state the advantage which
Mr. Dunbar might derive from accepting it before he advances
any opinion respecting the probable particular destination of the
vessel. This is a circumstance which may not be entirely im-
material. It may serve to show that in the opinion of the
writer, the principal proposition was stated. After recommend-
ing a shipment in the vessel, whose orders were to be received at
Cork, and whose destination from thence was to depend on the
discretion of the partners in Europe, Mr. Hart proceeds to say
something respecting the manner in which the discretion would
probably be exercised. “If,” says he, “peace is not established
in France by the time the Molly arrives at Cork, it is most pro-
bable she will be sent to Rotterdam or some port of Holland.”
It is contended, on one side, that this amounts to a declaration
that the tobacco would not be sent to France if the war should
continue. On the other side, that this is merely a conjecture
respecting the manner in which the discretion of the consignee
would be exercised without forming a limitation of that discre-
tion. -
With the proposition, is to be taken into view the declaration
of the sense in which it was accepted. For this purpose, the
Court is referred to the letter of the 19th of September. This
was after the tobacco had been put on board the craft; but, as
no intermediate letter is produced on either side, it is presumed
that none passed which would affect the case. In the letter of
the 19th of September, Mr. Dunbar says, “I hope the tobacco
will get to a saving market, as the quality is well suited to the
Dutch, where I expect it will ultimately go, as appearances, I
conceive, strongly indicate a continuance of the war.”
That both parties believed the Molly would not be ordered to
France, should the war continue, is apparent; but whether either
of them designed to prohibit Miller, Hart & Co. from giving
such orders, if in their judgment it should be for the benefit of
the cargo to give them, is not so clear.
Throwing the two letters into the form of an agreement, and
construing that agreement literally, the express power given to
92 VIRGINIA.
Dunbar v. Miller, Hart & Co, -
order the Molly to any port in Europe, out of the straits, would
not be restricted by any express declaration, that the right to
send her to France depended on the restoration of peace.
But there is great weight in the argument, that in mercantile
transactions of this sort, the impressions made by the communi-
cations between the parties, ought to be considered, and if a
meaning is fairly and justly to be implied, which the words
themselves, if digested into a formal agreement, would not
completely bear, that meaning ought not to be entirely disre-
garded by the Court. -
Although the letter written by Mr. Hart reserves to his part-
ners the power of ordering the Molly to any port in Europe,
and does not positively restrict their exercise of this power,
with regard to France, to the contingency of peace, yet its terms
are such as clearly to convey the opinion, that the tobacco would
not be sent to France, but on that contingency. “If,” says he,
“peace is not established in France by the time the Molly ar-
rives at Cork, it is most probable she will be sent to Rotter-
dam, or some port in Holland.” This reference, with respect
to France, to the single contingency of peace, unconnected with
the state of the market, shows, that in the mind of the writer,
her being ordered to France would depend on that contingency
only. It might, certainly, be fairly so understood by Mr. Dun-
bar. In strict prudence, the complainant ought to have ob-
served the equivocal expressions of the proposition, and ought
to have objected to the sending of his tobacco to France, unless
peace should be re-established; but if he understood that the
general power was reserved solely for the purpose of being ex-
ercised in its extent in the event of peace—and he might so
understand the letter—he may be excused for not directing that
which Miller, Hart & Co. had declared themselves previously
to have resolved on.
It is believed, that no person can read that letter without a
conviction, that at the time of writing it, Mr. Hart considered
it as perfectly certain, that the Molly would not be ordered to
France if the war should continue. The letter would not be a
MAY TERM, 1805. 93
Dunbar v. Miller, Hart & Co.
fair one, if such had not been his opinion. That Mr. Dunbar
did believe the possibility of the power he gave, being so
exercised, as to occasion the tobacco to be shipped to a port in
France, depended on peace, is strongly to be inferred from his
letter of the 19th of September. The whole context of that
letter shows it. -
These communications, then, are to be viewed as an agreement
by which the tobacco is consigned to Miller, Hart & Co., with
a general power to ship it from Cork, to any port of Europe,
out of the straits. But the application for that general power is
accompanied with a representation of the manner in which it is
to be exercised, which might well be understood, and which
most probably was understood, as a declaration, that the vessel
would only be sent to France on the contingency of peace.
Whether this representation is so strong as to charge the con-
signee with the loss occasioned by sending the vessel to Havre,
pending the war, is a point not absolutely decided by the
Court, because there is another part of the case which renders
its decision unnecessary.
The agreement under which the tobacco was shipped, might
be understood in the one way or the other. If, in the opinion
of Mr. Dunbar, the consignees had transcended their powers,
and he did not mean to abide by their conduct, it is perfectly
clear, that on mercantile principles, he should, on notice of what
they had done, have declared to them, that the responsibility of
their conduct rested on themselves; that the tobacco was theirs;
and that he claimed a credit for its reasonable value, at those
ports to which, in conformity with the contract, they might
have shipped it. He was certainly not at liberty to reserve to
himself the power of taking or rejecting the sales at Havre, at
his discretion; but his silence on the subject, if not an approba-
tion of their conduct, is an acquiescence under it.
It has been contended, that this transaction was not communi-
cated to Mr. Dunbar; but the fact will not support his counsel
in this respect. His bill admits a knowledge of it when his note
was given.
94 VIRGINIA.
Dunbar v. Miller, Hart & Co.
Had the pressure of Mr. Dunbar's circumstances been such as
to leave him not a free agent in this respect, the Court would not
have considered his silence as a waiver of his right to object to
the shipment of his tobacco to Havre. But this is not pretended.
His silence, therefore, can only be attributed to one of two mo-
tives: either he chose to take the chance of a favourable account
of sales, or, which is more probable, he expected that the loss
would not be considerable, and preferred a submission to it, to a
rupture with his friends and creditors. Let this be his motive,
and it will not support him in the attempt now made. If then,
silence had been observed on the part of Mr. Dunbar, he would
have been precluded from objecting to the act of sending the
Molly to Havre. But he has not been silent. The memoran-
dum at the foot of his note, is a complete relinquishment of all
objection to that transaction, so far as a relinquishment can be
implied.
This memorandum is said to have been made for his advan-
tage, and this is true. But what was the advantage he expected
to derive from it? Clearly only this. It proves, that from the
note was to be deducted the tobacco, when the account of sales
should be received. Why refer to the account of sales, if he
did not mean to admit that he was to be bound by them? Why
not claim an immediate, instead of a future, credit, if the invoice
price, or any other known standard, ascertained the credit to
which he was entitled P
The subsequent correspondence on which the defendants rely,
is certainly equivocal in its expression. But when the fact, that
Mr. Dunbar had full knowledge of the Molly having been or-
dered to France, is ascertained, that correspondence ceases to be
equivocal. It relates exclusively to the circumstance, that the
sum for which Mr. Dunbar ought to be credited on account of
this tobacco, is uncertain. - ..
The Court, then, is perfectly satisfied that the orders given
the Molly to sail for Havre, are sanctioned by the subsequent
conduct of Mr. Dunbar, after having full notice of the fact.
To the account of sales which has been returned, the objec-
MAY TERM, 1805. 95
Dunbar v. Miller, Hart & Co.
tions are to the commissions and to the compromise. With
respect to the commissions, the Court has required information
respecting the custom, and has stated an opinion, that only half
commissions is chargeable in such cases. If there be no custom,
the Court will direct that only half commissions be allowed in
this case.
With respect to the compromise, the circumstances under
which it was made, and the deposition of Mr. Colquhoun, satisfy
the Court, that it was prudent to compromise the claim. The
power of the consignees probably extended to a compromise,
unless it was the will of the consignor to take the transaction
into his own hands. The Court perceives no such disposition
in him. -
Yet, under the circumstances of this case, it is the opinion of
the Court, that Miller, Hart & Co., ought to explain to the
plaintiff, the terms and principles of the compromise. There is
so little probability that the transaction has been unfair, that the
Court will not continue the injunction on that account, but will
retain the suit on the docket if it be requested.
2. The accounts between the parties constitute the next sub-
ject of consideration.
The Court is of opinion, that any errors which may have ex-
isted in dealings carried on under the circumstances in which
these parties were placed, ought to be corrected. It does not
appear clearly, that a formal and complete settlement has ever
taken place. The accounts were conducted under so many dif-
ferent forms, as to contribute something to the opinion that they
have never been completely adjusted, and the early application
of Mr. Dunbar on the subject, weakens the argument drawn
from the time which has elapsed since accounts have been ren-
dered. .
With respect to the credit claimed for difference in exchange,
the arguments of the defendants themselves, if rightly under-
stood, are in favour of it to a certain extent. The payments
made before the judgment, ought certainly to be credited, ac-
cording to agreement, at the current rate of exchange. The
96 VIRGINIA.
Dunbar v. Miller, Hart & Co.
balance for which judgment was rendered, ought not to be af-
fected by the exchange.
DECREE. The injunction was perpetuated, as to the net amount
appearing due by the account of sales rendered, adding thereto
half commissions. 2. As to the difference of exchange on pay-
ments made by Dunbar to Miller, Hart & Co., before judgment;
and 3. As to the amount appearing on the commissioner’s re-
port in favour of Dunbar, growing out of erroneous calculations
of interest, and was dissolved as to the residue.
{
NoTE.—See a summary of the decisions of the Courts of the United States,
respecting the relation between Principal and Agent, and Consignor and Con-
signee, 1 Con. Rep. Sup. Ct. U. S., 594; 2 Con. Rep. Sup. Ct. U. S., 533; and
3 Con. Rep. Sup. Ct. U. S., 351, in notes.—[Editor.]
Cirtutit Cottrt of tige Jäuitely states,
VIRGINIA, NOVEMBER TERM, 1805.
BEFoRE
HON, JOHN MARSHALL, Chief Justice of the United States.
WADDINGTON v. BANKs ET AL,
The vendor of an estate, who has received the purchase money but retains the
legal title, is a mere trustee for his vendee, and can avail himself of no act’
prejudicial to the trust.
But, Quere: Where a mercantile firm sells real estate, and receives the purchase
money without making a conveyance of it to the purchaser, and several inter-
mediate sales are made, and the last purchaser brings suit against the surviving
partner to compel a conveyance of the legal title, will an individual equity
acquired by the surviving partner against one of the intermediate purchasers,
operate such an union in him of the legal and equitable titles as to give him a
perfect title to the property to the extent of that equity, and thus prevent the
court from decreeing that he shall convey the legal title to the last purchaser ;
The situation of the surviving partner, seeking to establish such an equity,
would at least be delicate; he would be required completely to show the fair-
ness of his transactions, and he would not be permitted, as against the purchaser
of the equitable title, to derive any advantage from speculation or from money
actually advanced with notice of the equity of the purchaser.
Vol. I.-N
98 VIRGINIA.
Waddington v. Banks et al.
MARSHALL, C. J.-This is an application to this Court to
direct a trustee to execute a trust by selling property on which
several different claims are asserted. Before such an order can
be made, the Court ought certainly to be satisfied of the title
of the trustee.
The lands conveyed in trust were originally part of a larger
lot, the property of James Currie, by whom it was sold and con-
veyed to Hunter, Banks & Co. By Henry Banks, the agent
and surviving partner of Hunter, Banks and Co. this lot was
divided into smaller parcels, one of which was sold to Nelson,
Heron & Co., and another to Fulwar Skipwith, who sold a part
to F. Groves, who sold to John Stockdell. To Fulwar Skip-
with no conveyance was made, nor is there any other evidence
of the sale to him, than a bond executed by the said Skipwith
with Henry Banks as security, which recites the sale made by
Banks to Skipwith, and undertakes that Skipwith shall make
a good title to Groves. This bond acknowledges the receipt
of the purchase money from Groves, and is dated on the 29th of
July, 1784.
As it is not alleged that Banks had not received the purchase
money from Skipwith, and as Banks has bound himself that a
good title should be made to Groves, who is admitted to have
paid a full consideration for the property, it will not be ques-
tioned that the whole equitable estate was in Groves, and that on
application, a court of equity would have decreed Henry Banks
to convey the legal estate to him also. This bond was afterwards
assigned to John Stockdell, in whom the equitable estate was
thereby completely vested.
In February, 1788, Stockdell conveyed this lot with other
property to James Brown in trust, to secure a debt to Alexander
Donald, having previously mortgaged it to Young and others.
On the 3d of December, 1789, Stockdell & Young and others, the
previous mortgagees, unite in a "conveyance to Alexander Donald.
This deed purports to be an absolute conveyance.
[On the second day of July 1790, Alexander Donald executed
a deed conveying the said property to James Brown, in trust, to
NOVEMBER TERM, 1805. 99
Waddington v. Banks et al.
convey it to such person as the said Donald should afterwards
appoint. Donald subsequently, but before the institution of
this suit, made a conveyance of the same to Daniel Call, in trust,
to sell the same and pay the money arising from the sale to the
plaintiff Waddington, and also directed Brown to convey the
same to Daniel Call, in order to enable him to fulfil the last men-
tioned trust.]—[Editor.]
Thus was the interest of Stockdell completely vested in
Donald, and if there were no other circumstances in the case, it
would be unquestionable that the legal title, which still remained
in Hunter, Banks & Co. was without a single equitable circum-
stance which could restrain a court of chancery from decreeing
a conveyance from him to Donald.
Against this equitable title, the defendant Banks relies on a
counter equity, which is produced by a debt due to him from
Stockdell, to secure which this bond was endorsed in blank by
Stockdell, but they had been previously pledged to John Young,
to whom Henry Banks says he paid £800 for the possession of this
pledge and of the deed for another parcel of the same lot which
had been also purchased by Stockdell. Having thus united an
equity to his legal title, he relies upon that legal title to secure
the debt due to him from Stockdell, and also to secure the money
paid to Young. - -
In examining this claim, a difficulty presents itself at the very
threshhold. To give it efficacy, there must be a union of the equi-
table and legal title. But in this case the equitable claim is in
Henry Banks, and the legal title in Hunter, Banks & Co. I have
not inquired whether the circumstance of Henry Banks, being the
surviving partner of Hunter, Banks & Co., will have any influ-
ence on the case, because that fact does not appear, and because,
from any thing that is yet shown in the papers, I should not
deem the inquiry essential, -
But it is material to inquire what was the relation between
Henry Banks and Stockdell, when the rights of Donald and of
Banks accrued P -
The vendor of an estate, who has received the purchase
100 VIRGINIA.
Waddington v. Banks et al. -
money, but retains the legal title, is certainly a mere trustee for
his vendee, and can avail himself of no act prejudicial to the
trust. I believe this position is correct. If gentlemen think it
is not, I will with much pleasure hear them upon it. Presuming
it for the present to be correct, I shall proceed to consider the
case as if Mr. Banks was a trustee, holding the legal estate in
trust for the purchaser of the equitable title.
I will not determine what the law in such a case would be, if
Mr. Banks had advanced money to Mr. Stockdell, under a stipu-
lation that he might retain the lien upon the estate to secure the
repayment of that money. Perhaps the agreement would be
carried into effect. But I have no hesitation in saying, that the
situation of a person so circumstanced is delicate, the fairness of
his transactions must be completely made out, and he will not
be permitted, as against the purchaser of the equitable title, to
derive any advantage from speculation, or from money actually
advanced with notice of the equity of the purchaser.
Mr. Banks then, would be required to show at what time he
acquired the bonds he holds, what were the circumstances under
which they were acquired, and what sum of actual money was
advanced for them. The whole proof would be upon him.
When I look for the proof on these points, I find none which
favours the claim of Mr. Banks. His own answer, if it were
evidence, does not furnish them. He does not state these par-
ticulars, and it would be necessary that he should state them, in
order to make out a case which the Court might inquire into.
The proofs in the cause lead to an opinion destructive of his
equity. The most material paper is the original bond to Skip-
with, in possession of Mr. Banks, with a blank endorsment.
On the 22d of February, 1788, this bond was assigned to
Young and others, to whom a mortgage of the premises was
executed on the same day. This assignment was afterwards
erased. It cannot be presumed, that this erasure was made, or
the bond delivered up, until the mortgage was satisfied. In
June, 1790, proceedings were instituted on this mortgage in the
high court of chancery, and a decree of foreclosure and sale of
NOVEMBER TERM, 1805. 101
Waddington v. Banks et al.
part of the property was obtained. The sale was made in
November, 1790, and the debt of Young was satisfied. The
report, however, was not made to the court. Of these pro-
ceedings against the property, Mr. Banks was bound to take
notice. He was, therefore, bound to know that the claim of
Young was satisfied, and that he had no power over the bond.
s The bill filed in 1790, states a sale, it is presumed, of this
property to Alexander Donald, with the consent of the mort-
gagees, and on the 3d of December, 1790, a conveyance was
made in pursuance of that sale. Of this sale, Mr. Banks cannot
be presumed to have been ignorant. He does not state himself,
to have been ignorant of it. Without inquiring into other cir-
cumstances, the possession of Donald bound him to take notice
of it. -
If Young, after joining in the conveyance to Donald, has
given up the bond to Banks, he has been guilty of a gross
fraud, which would merit the severest animadversion of the
laws. But be this as it may, I must consider Mr. Banks as a
trustee, who, after notice of the equitable transfer of the estate,
endeavours to defeat the rights of the purchaser. I can, there-
fore, perceive no ground on which to sustain his claim.
Respecting the lot sold to Nelson, Heron & Co., there can
be still less question, because the legal estate is not in Henry
Banks & Co., and the prior equity is in Donald.
The rights of Dr. Currie cannot be decided on, he not being
party to this suit. I can only inquire whether Mr. Banks can
retain for him.
There can be, I think, no case or principle stated, which
would enable him to pursue a purchaser who has paid the pur-
chase money for his land, although, at the time of paying the
purchase money, he had notice that Currie was unpaid.
His claim rests upon the ground of contract. I am inclined
to think, from the bill in Young’s suit, that a part of the pur-
chase money is not credited. Currie may claim for that after
the whole debt from Stockdell to Donald is satisfied.(1)
(1) As to the light in which secret liens are regarded in equity, see Bailey
v. Greenleaf, 7 Wheat. 46. (5 Con. Rep. Sup. Ct. U. S., 229.) Moore et al. v.
102 VIRGINIA.
Waddington v. Banks et al.
DECREE. The decree which was rendered in this case, after
reciting, that in the opinion of the Court, the defendant, Banks,
had no equity against the plaintiff, either in his own right, or
as a partner of, or representing Hunter, Banks & Co., directs
the defendant Banks, to “deliver up to the plaintiff, the bond
of Fulwar Skipwith and Henry Banks, to Francis Groves, and
by the latter assigned to the said John Stockdell, in the pro-
ceedings mentioned : that he also deliver up to the plaintiff, the
deed amongst the exhibits from the said Banks to James Heron,
and by him assigned to the said Stockdell : that the said de-
fendant, Banks, convey and release to the said defendant, Daniel
Call, in fee simple, all his right, claim, interest, and estate,
either in his own right, or as a partner of, or representing,
Hunter, Banks & Co., in the lands, houses, and tenements men-
tioned in the said bond from Fulwar Skipwith, to the said
Francis Groves;” and further directs three special commis-,
sioners, appointed by the Court, to sell the same, and pay the
proceeds of sale to the plaintiff.
Holcombe et al., 3 Leigh, 604. Duval v. Bibb, 4 H. & M. 113. In Bailey v.
Greenleaf, in which there was an actual conveyance of the legal title, the court
said, that the lien of the vendor for purchase money remaining unpaid, if in the
nature of a trust, was a secret trust; and, although to be preferred to any other
subsequent equal equity, unconnected with a legal advantage, or equitable ad-
vantage which gives a superior claim to the legal estate, will be postponed to a
subsequent equal equity, connected with such advantage. They, therefore, re-
fused to support the secret lien of the vendor, against a creditor of the purchaser,
who was a mortgagee. It would seem a fortiori, that a secret equity, subsequently
acquired, could not be sustained against a boma fide purchaser, without notice.
—See also, 2 Robinson’s Practice, 180–2.
©ittutit Cottrit of tiſt Jānittu Sétates.
& -
VIRGINIA, NOVEMBER TERM, 1806.
BEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
SHORT v. SKIPwrTH.
Where an agent voluntarily disobeys the instructions of his principal, and con-
verts to his own use a sum of money belonging to his principal, to which a
definite and a specific destination is given by the principal, and the article into
which the agent is directed to convert the money subsequently acquires great
additional value, the agent is not merely responsible for the money, so mis-
applied, with legal interest, but is accountable for the article into which it ought
to have been converted. -
Although it is a rule, that the condition of him who seeks to avoid a loss, is
viewed with more favour than that of a person who seeks a gain; yet, between
contending parties, the wrong-doer is the person who ought to suffer, and he
shall not be allowed the benefit of the rule. - -
A, the principal, residing in Europe, directs his agent B, in Virginia, by letter
bearing date December 20th, 1787, to convert the funds in his hands belong-
ing to the principal, into certifieates, which B fails to do. In the spring of
1789, B determines to relinquish his agency, and places A's funds in the
hands of C, except £51 16s. 10d., which are not accounted for. C invests
the funds of A*in certificates, according to his previous directions: Held, That
B is chargeable with certificates which he ought to have purchased, with the
balance remaining in his hands, at the same rate that other certificates were
purchased by C, in 1789. But B is accountable for the certificates with their
104 VIRGINIA.
Short v. Skipwith.
legal interest, only, and not with the certificates into which the interest might
annually have been converted. -
The general policy of the law forbids that a debtor should be subjected to all the
loss consequent on his failure to fulfil a promise to pay the debt. Such breaches
are so often the result of events which could neither have been prevented or
foreseen by the debtor, that interest is generally considered as compensation,
which must content the creditor. -
A contract of loan for six per centum interest, when the law allowed only five, is
clearly usurious; but where the person who betrays the lender into such a
contract is his agent, it would be against good conscience that the borrower
should derive any advantage to himself, prejudicial to the lender from this cir-
cumstance, and the lender is entitled to legal interest.
An agent, who, in his character of agent, collects a debt due to his principal,
and retains it by contract of loan with his principal as debtor, entered into
before the debt is collected, is not entitled to commissions on the amount so
collected. t -
THE complainant, William Short, a citizen of the state of
New York, filed his bill in this Court, in 1803, against the
defendant, setting forth that Skipwith, as agent of the plaintiff,
had abused the confidence reposed in him by his principal, had
failed to account for several sums of money received by him in
his character of agent, and had neglected to apply other funds
of Short, which had come to his hands, according to the
positive instructions of Short; whereby he had sustained heavy
losses, and praying an account, &c. By the letters of Short to
Skipwith, which are filed in the cause, it appears that Short, in
January 1786 (then residing in France), constituted the defend-
ant his agent in Virginia, and directed him to withdraw certain
military certificates belonging to Short, from the hands of Benja-
min Harrison, Jr., his former agent in Virginia; and to remit the
interest which had accrued or should thereafter accrue thereon to
the said Short, in Paris. The plaintiff, however, on the 4th of
May, 1787, informed his agent that he was no longer in need of
the interest arising from the certificates, and desired him to
convert it into principal, that he preferred to have it converted
into certificates, but gave his agent no positive instructions to
that effect. On the 4th of August of the same year, Skipwith
acknowledged the receipt of Short’s letter of the 4th of May
NOVEMBER TERM, 1806. 105
Short v. Skipwith.
preceding, in which he strongly dissuaded Short from making
any further investment in certificates, stating, that “he had
already ventured far enough on the faith of a Pirginia Assem-
bly.” He urged Short, however, to give him positive instruc-
tions, promising that they should be obeyed. These positive
instructions were given by the plaintiff in his letters of the 20th
and 31st of December, 1787, of the 1st of February, 1788, and of
the 20th of March, 1788. These letters are couched in very
strong terms, and urge Skipwith, in the most earnest manner,
to convert all of Short’s funds which should come to his hands
from any source, into certificates. These instructions were not
complied with, and in the spring of 1789, the defendant relin-
quished his agency, and placed the certificates belonging to
Short, with the interest which had accrued on them, except
511, 16s. 10d., in the hands of James Brown, a merchant residing
in Richmond, Virginia, who proceeded to convert the interest,
viz., 290l. 10s. 7d., into certificates. It was not invested, how-
ever, as advantageously as it might have been at the corres-
ponding period of the previous year, when the instructions from
Short to Skipwith were received, they having risen in value
considerably. The plaintiff asserts a claim to the difference, and
contends that the deficiency of 50l. 16s. 10d. should be considered
as certificates according to their value in 1788. f -
As to the other questions in the cause, the circumstances out of
which they arose are sufficiently stated in the following opinion
of the Court. - -
MARSHALL, C. J.-In arguing this cause, the counsel, both for
the plaintiff and the defendant, rely upon the situation of the
parties as furnishing strong reasons in favour of that result for
which they severally contend. The plaintiff, in a distant country,
commits his most important interests to his friend in Virginia ;
places in the hands of that friend large sums of money, which
are to be employed for the advantage of the owner, manifests a
strong preference for their being invested in the public funds,
and, after some time, expressly orders that investment. The
VoI. I.-O
I06 • VIRGINIA.
Short v. Skipwith.
agency is entered into with alacrity; but the agent was a private
gentleman, not in habits of dealing in public paper, and residing
at some distance from the great market to which the commodity
was most usually brought. It certainly was not to be expected,
that a person under the circumstances of the defendant, could
execute the orders of the plaintiff with the celerity and adroit-
ness of a professed dealer in certificates; but it was to be
expected, that the orders of the plaintiff would not be disobeyed,
and his remote situation increased the obligation not altogether
to neglect any part of his business.
In its origin, the duty of the agent, except as it regarded the
collection of a few debts, which will form an object of particular
consideration, was limited to the safe custody of the certificates
of his principal, and a remittance of the interest. The circum-
stances of the plaintiff, probably, changing so as no longer to
require remittances from Virginia, he formed the resolution of
converting the profits of his estate into additional capital, which
resolution was communicated to the defendent in a letter of the
4th of May, 1787. This letter manifests a preference for cer-
tificates over other property, but unquestionably submits it to
the discretion of the agent who was on the spot, to act according
to the opinion he should form on circumstances which were
often changing. Nothing can be more obvious than that the
judgment of the agent was in direct opposition to that of his
principal, and that he was radically opposed to those hazardous
investments to which his principal was strongly inclined,
Under these impressions, he earnestly dissuades the plaintiff
from the measure to which he seemed most inclined, but accom-
panies his request for positive orders, with explicit assurances
that those orders, whatever they might be, should be obeyed.
This request produced the letter of the 20th of December, which
could not be well misunderstood. Only strong circumstances,
unknown to the plaintiff when that letter was written, and ren-
dering it almost certain that the public debt would not be placed
on solid funds, could have justified a departure from the instruc-
tions contained in the postscript of that letter. Seldom is less
NOVEMBER TERM, 1806. 107
Short v. Skipwith.
latitude given to an intelligent, an upright, and a distant agent.
The letters of the 31st of the same month, and of the 1st of
February 1788, are still more positive. The suspicion, that any
state of things could exist which might render the observance of
these orders imprudent, seems to have passed away, and they
are absolute. The defendant could not misunderstand them.
In the spring of 1789, the defendant became disposed to
relinquish the active part of his agency ; and, thereupon, he
placed the fund in the hands of Mr. James Brown. The whole
interest which had accrued on the certificates was not at this
time accounted for. It appears from the report, that 511, 16s.
10d, were neither invested in certificates, nor placed in the
hands of Mr. Brown, nor accounted for in any manner. The
Court knows not what disposition was made of this money, and
must consider it as having been appropriated by the defendant
to his own use. If any other application was made of it, it is
incumbent on the defendant to show such application. Whether
this residuum was in specie, or in warrants, is not expressly
stated; but a view of the report would induce the opinion,
that it was a balance of interest money accruing before the 1st
of January 1789; arid, consequently, must be considered as
specie. If the fact be otherwise, the defendant ought to show
it. Had this money been placed in the hands of Mr. Brown, it
might have been, and would have been, so far as any facts ean
authorise such a conclusion, converted into certificates. The
question, then, arising upon this part of the case is, whether an
agent who voluntarily disobeys the orders of his principal, and
converts to his own use a sum of money belonging to his prin-
cipal, and distinctly appropriated to a definite object, shall be
accountable for the money arid interest, or for the article into
which it ought to have been converted 2
The situation of the defendant has no bearing on this case,
because, if he found a difficulty in making personally the neces-
sary investment of money in certificates, he could have found
no difficulty in delivering the money, with the certificates and
interest-warrants, to Mr. Brown. The case appears to be
108 VIRGINIA.
short. Skipwith.
stripped of every circumstance which can give to it any other
character than that of a diversion of funds by a trustee from
their proper object to his own use.
That the principal has been essentially injured in the events
which have happened by this breach of trust, that the restoration
of his money with interest will be no compensation for this
injury, is too obvious to be controverted; that the agent will
sustain great real loss if decreed to compensate the principal, is,
perhaps, equally true. -
On the part of the defendant, it is urged with great force, that
the condition of him who seeks to avoid a loss, is viewed with
more favour than that of a person who seeks again. The influ-
ence of this argument will always be felt by those, whose duty
it becomes to decide questions of this description; and if other
considerations be nearly balanced, its influence must be decisive.
But there may exist considerations which ought to overcome the
mild policy of the rule which has been stated. It is also a maxim,
which, on every principle of morals, is entitled to great regard,
that between contending parties, the wrong doer is the person
who ought to suffer. In the present controversy, no blame can
attach to the plaintiff. His instructions are distinct, the means
of observing them are placed in the hands of Mr. Skipwith, and
it cannot be alleged that the failure to observe them is, in the
most remote degree, to be ascribed to Mr. Short. That the ba-
lance, whatever it may be, rests with Mr. Skipwith, seems incon-
testible. If, because the loss of Mr. Short is merely the loss of
gain, his compensation should be restricted to the restoration of
his money with interest, the encouragement which such a deci-
sion would give to dangerous and corrupt practices in the inter-
course between a principal and his agent, must be apparent. It
would hold forth an inducement, in every instance where extra-
ordinary profit might be made, to divert trust funds into other
channels than those for which it was designed, to the great in-
jury of a large portion of society.
It is said, and truly said, that extravagant calculations of con-
jectural profits are not to be indulged, and will never be regarded
NOVEMBER TERM, 1806. 109
Short v. Skipwith.
in courts of justice, as the standard by which damages are to be
ascertained. The example given is, that the plaintiff might have
subscribed his stock to the bank, might have sold out at a high
price, and employed the produce of the sales advantageously.
Certainly, such possibilities are to be totally disregarded. But,
undoubtedly, where a single investment of money is ordered on
a specific article, which article of itself, without any new opera-
tion depending on the judgment, acquires great additional value,
this additional value cannot fairly be denominated the result of
an extravagant calculation of imaginary profits. Suppose a con-
tract for the purchase of an increasing property of any descrip-
tion, which contract depended on the payment of money on a
given day. If the agent in whose hands the purchase money
was placed, should, instead of executing his trust, convert a part
of the money to his own use, and thereby defeat the contract, it
would seem unjust that the remedy of his principal should be
limited to the money and interest. That this would not neces-
sarily be the measure of damages, is to be inferred from the cir-
cumstance, that the injured person is not confined to an action
for money had and received to his use, but may maintain a spe-
cial action on the case for the damages actually sustained. Be-
tween the case supposed, and that at bar, there seems to exist no
solid distinction. The difference between a contract actually
made, and one which the agent had engaged to make, and pos-
sessed the absolute power of making, seems not sufficient to war-
rant a different decision in the case of a misappropriation of the
fund.
Reasoning by analogy, there are many principles settled by
decisions, which justify the position, that in general cases, the
agent who voluntarily commits a breach of trust, by applying
the trust money to his own use, must account for the loss which
-his principal has sustained. But by each party an authority has
been cited, which is considered as applying directly to the case
before the court. *
On the part of the defendant, the case of Groves v. Graves, (1)
(1) I Wash. Rep. 1–[Editor.]
1 10 \ VIRGINIA.
*
:
.
Short v. Skipwith.
has been relied on, as a direct authority, for limiting the recovery
of the plaintiff in this case, to his principal and interest.
In the case of Groves v. Graves, the principle that the value of
the article, when the contract ought to be performed, is the pro-
per standard of damages, was not laid down as a general rule to
govern in ordinary cases, but is stated to be the proper rule un-
der the peculiar circumstances of that case. What those peculiar
circumstances were, must be searched for in the record, as the
opinion of the court makes no allusion to them. That there
were circumstances to which the court allowed weight, ought to
be inferred, from their resting their decision, not on , general
principles, but on those peculiar circumstances. If we examine
the case, as reported in 1 Wash., we find no other testimony
than the contract, and a deed of trust as a collateral security for
the performance of that contract. The decree of the chancellor
is founded on the contract being designed to secure an uncon-
scionable advantage, or on its being obtained from a person
whom Groves had reason to believe a needy man. But the opi-
nion of the court of appeals disclaims this ground, as the lowest
price of certificates mentioned in the contract, was merely a
penalty, and as the price actually agreed on was only the lowest
market price. The contract, therefore, did not exhibit those
peculiar circumstances on which the opinion of the court was
founded, and certainly, the collateral security could not change
the nature of the rights which the contract gave. In fact, that
case has since been generally considered, notwithstanding the
terms in which the opinion of the court was delivered, as set-
tling a general principle, which should apply to all contracts
made in public paper. Yet there are in the case, some particu-
lar circumstances, which, whether sufficient to be the motives for
the decree or not, were most probably of some weight. Although,
the lowest price mentioned in the contract is, in construction of
law, a penalty, yet it was intended by Mr. Groves, to avail him-
self of that penalty, he obtained a judgment at law for it, and his
answer claimed the whole advantage of that judgment. Even
the actual price agreed upon was the lowest market price.
NOVEMBER TERM, 1806. 111
Short v. Skipwith.
--mºmºmº-ºº-ºº
Graves, against whom the judgment was obtained, was not him-
self the wrong doer, did not himself receive the money, but was
the security of Stockdell. It is not impossible that these circum-
stances might have some weight in producing the opinion which
was given. None of them exist in the case now under considera-
tion. r
The plaintiffs have cited a case from 2 East, 211, (Shepherd
v. Johnson,) in which it was decided in the court of king's
bench, that in a contract for replacing stock, the price on the
day was not the true measure of damages, but the subsequent
rise ought to be taken into consideration. The only peculiarity
attending that case is, that it appears to be a loan of stock, and
not a contract for its purchase. Between a loan and a contract
to purchase at a fair price, where the money is actually advanced
by the purchaser, and no casualty prevents the seller from pro-
curing the article, the Court cannot distinctly perceive a differ-
ence. An agent misapplying the fund, to his own use, does
not appear in a more favourable point of view than a borrower.
The case in 2 East, therefore, appears to be directly in point,
and in this case, the Court is of opinion, that the defendant is
accountable in certificates for the money remaining in his hands.
Perhaps, in strictness, that money ought to be converted into
certificates, at the price taken by the commissioner.(2) But
(2) The commissioner in his report, estimates the certificates at the price which
they bore in the spring of 1788. In 1789, they had risen very much in value.
The opinion here intimated by the Chief Justice, that the money in the hands of
the agent should be considered in strictness, as certificates, at the price they bore
in 1788, would seem, by analogy, to be the correct one. As between the vendor
and vendee of property deliverable on a certain day, in futuro, it is well settled
by a series of decisions, that in a suit by the vendee for damages for the failure to
deliver, the measure of damages is the value of the article at the time of the
breach. The contract price on the one hand, and the rise subsequent to the
breach, are both to be disregarded. See note (1) to Letcher & Arnold v. Wood-
son, reported infra in this volume, where the cases on this subject are collected.
It would seem, that the principle of those cases would apply equally to the rela-
tion between principal and agent.—[Editor.]
112 VIRGINIA.
Short v. Skipwith.
the disposition to diminish so excessive a loss, as the defendant
would sustain by this rigid application of the rule, will induce
the Court to lay hold of any principle or fact, which the case
affords, to effect this diminution.
If the money in the hands of Mr. Skipwith had been placed
in the hands of Mr. Brown, in the spring of 1789, although
this would have been a tardy execution of the trust, it would
have satisfied the Court. Had the money been placed in Mr.
Brown’s hands, it is not clear that it would have been invested
in paper to more advantage, than the money which was placed
in his hands. Upon this part of the case, then, it is the opinion
of the Court, that the money remaining in Mr. Skipwith’s
hands, ought to be converted into certificates, at the same rate
that other monies were converted into paper in the year 1789,
it is presumed, by Mr. Brown. The same train of reasoning
which rejects the admission of compound interest, will induce
the Court to direct, that these certificates shall be accounted;for,
with only their legal interest, and to set aside so much of the
report, as charges the defendant with the certificates into which
the interest might annually have been converted.
The next point to be considered, is the money placed in the
hands of Col. Kennon, and invested by him in certificates.
As this was a transaction of the defendant himself, it was his
duty, either to have collected this debt, or to have transferred
this claim to Mr. Brown, and have put it in his power to collect
it. To have omitted to do either, is such excessive negligence
as in a case, of the character of that before the Court, cannot
be tolerated. By holding up this claim, after the agency had
passed into other hands, Mr. Skipwith must be considered as
taking upon himself the responsibility for its amount, to Mr.
Short. But, pursuing the principle which was observed in
regard to the money applied to his own use, the Court will con-
sider him as accountable only for the certificates and interest.
The third exception to the report, respects the debt which
was due from Col. Harvie. The transaction relative to Harvie’s
bond is, in some important particulars, distinguishable from
NOVEMBER TERM, 1806. I 13
Short v. Skipwith.
those parts of the case which have been already noticed. This
money does not appear to have been used by Skipwith, in virtue
of the general agency, but in consequence of a loan. Previous
to the letters of January and February, 1786, a communication
concerning the lending and borrowing of that debt had taken
place between William Short and the defendant. Although
the nature of this communication does not appear to be accu-
rately recollected by either of the parties, it is sufficiently ap-
parent, that the defendant wished to borrow the money, and
that the plaintiff was willing that he should receive it on loan.
Although the letter of July 3d, 1786, shows, that Skipwith
had relinquished any right to the money, which might be given
by the conversation with Short, yet the proposition made to
the plaintiff in that letter, has relation to the original contract,
and seeks to renew it. It is true, that at the time of receiving
the bond from Edmunds, the defendant did not take it upon
himself. He seems at that time to have been equally appre-
hensive of paper money, and of the abolition of certificates,
and not to have chosen to expose his friend to the one casualty,
or himself to the other. It was only after the debt was col-
lected, that he was willing to consider it as his own. His letter
of March, 1787, announces his collection of the debt, and his
determination to hold it at six per cent. The plaintiff’s letter
of the 20th of December, 1787, manifests his satisfaction with
this employment of the fund.
From a review of all the circumstances which preceded the
completion of this transaction, it results, that the money was
collected by the defendant, in his character as agent, and ap-
plied to his own use, in consequence of a contract to that effect,
which was made before his agency commenced, which contract
was sanctioned by the plaintiff in the letter of appointment, and
which application was afterwards approved by him. Where,
in different parts of the same transaction, the same person acts
in different capacities, it is often difficult to assign to each part
its distinct character. Indeed, it will often happen, that the
VoI. I.-P
1 14 VIRGINIA.
Short v. Skipwith.
two characters are so intermingled, that each will impart some-
thing of itself to the other. -
The question made in this case is, whether Skipwith held
the money collected from Col. Harvie, as a common debtor, or
as the agent of Mr. Short 2 -
So far as respects an ability to avail himself of any penalty,
to which Mr. Short might be exposed, there can be no doubt,
but that he ought to be subjected to all the restraints of an agent,
or trustee. But in other respects, his character seems to be
rather that of an ordinary debtor. He appropriated the money
to his own use, not merely in virtue of his authority as agent,
but with the previous and subsequent approbation of the plain-
tiff, and he paid interest on the money so appropriated. It is
true, that an express promise was made to hold the money,
subject to the orders of the plaintiff, but the loan does not ap-
pear to have been made on this condition ; and, in point of fact,
every sum payable on demand is held on the same terms.
Yet it is a question of some intricacy, whether this money
is not to be considered as being in Mr. Skipwith’s hands, as
agent, and not as a debtor, in consequence of the letter of the
plaintiff, directing its investment in certificates, and the pro-
mise of the defendant to comply with that direction, and whe-
ther Mr. Skipwith is not liable to the extent of his promise.
With some hesitation, the Court has decided this question in
the negative. º
The original appropriation of this money to his own use,
having been an act which was perfectly rightful, Mr. Skipwith
has been already stated to have been so far an ordinary debtor,
and it would be going a great way to subject a debtor, who pro-
mises to pay a debt, to all the loss consequent on his failure
to fulfil his promise. The general policy of the law does not
admit of such strictness ; and although, in morals, a man may
justly charge himself, as the cause of any loss, occasioned by
the breach of his engagements, yet in the course of human
affairs, such breaches are so often occasioned by events which
were unforeseen, and could not easily be prevented, that in-
NOVEMBER TERM, 1806. | 1.5
Short v. Skipwith.
terest is generally considered as compensation, which must
content the injured. Mr. Skipwith, therefore, will be decreed
to account for Harvie’s debt in specie, and not in certificates.
There is another part of this claim, which the Court touches
with real reluctance. The contract of loan being for six per
centum interest, when the legal interest was only five, was
evidently usurious. The Court cannot decree a larger interest
than the law allows, whatever may be the contract of the par-
ties. But the person who drew the plaintiff into this contract,
having been himself the agent, it would be against conscience,
that he should derive any advantage to the prejudice of the
plaintiff from this circumstance. The Court, therefore, allows
the legal interest of five per centum. -
Had the Court approved the conversion of this debt into
certificates, the commission upon its collection, and upon its
investment, would undoubtedly be approved also. But the
change of this essential principle, produces corresponding
changes in minor parts, which are connected with it. The de-
fendant, having collected this money for himself, is not entitled
to a commission on the collection; and as he is not chargeable
with certificates, he can have no claim to commissions on such
investment. Another slight change to be made in the account
is, in the allowance of expenses, as well as commissions, on the
business actually transacted. That reasonable expenses ought
to be allowed, if commissions are withheld, is unquestionable,
but when commissions are allowed, it is supposed to be usual
to admit no other charge on the business.
The Court has felt some difficulty, respecting Griffin's note.
It is unquestionable, that the orders of Mr. Short did not au-
thorise such a purchase, and that it was an indiscreet exercise
of his powers as agent, to purchase the bond of any person for
certificates, instead of the certificates themselves. This indis-
cretion is enhanced by taking an assignment, without recourse
on the assignor. It is answered by the defendant, that Mr.
Short was well satisfied with a similar contract, made with Mr.
Giles. But upon examining the letter of Col. Skipwith, which
1 16 . VIRGINIA.
Short v. Skipwith.
announces this purchase, he states the acquisition to have been
of certificates themselves, nor does he allude to the real state
of the fact, until his letter of June 16th, 1788. In that letter,
he gives some account of his investments, and states himself, to
have paid Mr. Giles 4930 for £200, in military notes. There
are several reasons for not considering the non-appearance of a
disapprobation of this proceeding, as an implied permission to
deal in private bonds, instead of public securities. The ex-
pressions used are ambiguous, and might be misunderstood by
Mr. Short. After a positive statement given by Skipwith, that
he had actually purchased public securities, the term military
notes might well have been understood, by a person in Mr.
Short’s situation, as a species of public paper, not as a private
note for public paper. The same letter, too, promises a detail-
ed statement of the situation of the plaintiff’s affairs, which
was not given till 1791, long after this contract with Mr. Short
was made. The letters of Mr. Short, subsequent to June, 1788,
press continually for this statement, and urge an investment of
all his funds, according to his explicit instructions, which were
given in his letters of December, 1787, and February, 1788.
Those letters certainly contain nothing which can mend the
defendant’s case. | -
The circumstances of the contract, also, deserve considera-
tion. It is remarkable, that Col. Skipwith purchased this note
partly on credit. In March, 1788, when the note was pur-
chased, he paid £29 15s. 4d., and in the December following,
2120 4s. 8d. The argument, that he purchased a bond, instead
of certificates themselves, for the sake of the credit, is scarcely
to be resisted. He ought not to have required credit. He
would then have been in funds from the interest-warrants of
the plaintiff, had he retained that fund for the object to which
it was appropriated. What the opinion of the Court, on this
point, might have been, had this bond been purchased for ready
money, need not be stated. It would certainly have presented
the question, under an aspect less unfavourable to the defend-
ant’s cause; but, circumstanced as the case is, the Court cannot
NOVEMBER TERM, 1806. 117
Short v. Skipwith.
admit this item to the defendant’s credit. This opinion is not
formed on the situation of the obligor. The testimony of the
case, induces the opinion, that his ability to pay the debt might
have been confided in. But the defendant ought not to have
purchased any bond, and the probability that this improper
measure was occasioned by having made use of the funds of
thé plaintiff, in his hands, seems decisive of his liability for
this sum. But, as he has actually paid for the bond, and has
not, in this respect, retained in his hands the money of the
plaintiff, but has sought to invest it in certificates, there is a
distinction between this part of the case, and that in which the
Court held the defendant responsible for the amount of the
money retained, in certificates themselves. For this sum,
therefore, the defendant will be chargeable only in specie.
For the reasons given in the report, the defendant is not
chargeable with Randolph’s bond. -
For the mare, the defendant is accountable, but the commis-
sioner possessed no testimony, which would enable him to
introduce that item into the account. Unless it can be arranged
by the parties, it must be settled by a jury, and for that pur-
pose, an issue will be directed.
DECREE. This cause came on to be heard at the last term
on the bill, answer, depositions, exhibits, the report of the
commissioner, the exceptions to that report, and the arguments
of counsel, all which being fully considered, the Court is of
opinion, that the instructions given by the plaintiff to the de-
fendant, in his letters of December 1787, and February 1788,
to convert the money in his hands, into public securities of
some description, were positive, and ought not to have been
disregarded; and that, therefore, the defendant is accountable
in certificates, at the rate at which they appear in the receipt of
James Brown, which is one of the exhibits, to have been pur-
chased in 1789; for so much money arising from the interest
on the plaintiff’s certificates, as was retained by the defendant,
and applied to his own use; but that he is accountable only for
118 VIRGINIA.
Short v. Skipwith.
simple interest on those certificates, at the rate of six per centum
per annum. The Court is also of opinion, that the defendant,
having not only neglected to furnish the plaintiff, or the agent
who succeeded to the management of his affairs, with any do-
cument which could enable him to recover the debt due from
Richard Kennon, must be considered as having collected that
debt, or as having made himself responsible for it, and is, there-
fore, chargeable with the sum in certificates, which the said
Kennon stated himself to have purchased. The Court is further
of opinion, that the debt due from J. Harvie, in the proceedings
mentioned, was placed in the hands of the defendant on loan,
and is to be accounted for in specie, with interest, at the rate
of five per centum per annum, that being the interest which,
when the debt was contracted, it was lawful to receive; but the
defendant is not entitled to the commissions, with which he is
credited in the report for collecting this debt, he having receiv-
ed it on loan. The Court is further of opinion, that the defend-
ant was instructed to purchase public securities, and not
empowered to buy private bonds for public securities, and,
therefore, that he is not entitled to a credit in account for Grif-
fin's bond, the more especially, as that bond was purchased on
a credit at a time when the money of the plaintiff was in his
hands. But as the sum given for this bond, appears to have
been laid out, with the intention to benefit the plaintiff, and not
for his own advantage, the defendant is only to be charged with
the sum in specie, with interest thereon, at the rate of five per
centum per annum. The Court is further of opinion, that the
credits given to the defendant, on account of expenses, ought
to be disallowed, the commission on his transactions as agent
being a sufficient compensation for those transactions.
Circuit Court of the Qinittu states.
VIRGINIA, MAY TERM, 1807.
BIEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
Hon. CYRUS GRIFFIN, District Judge of the United States.
JAMEs CALLow Ay, Surviving Partner of TRENTs & CALLowAY,
v. M. & J. Dobson, Administrators of JoBN DOBson, deceased,
Surviving Partner of Dobson, DALTERA & WALKER.
Motions to amend the pleadings in a cause, either at law or in equity, are always
addressed to the sound discretion of the court: and this legal discretion seems *-
to acknowledge no other limits than those which are required by the purposes *
of justice, and for the restraint of gross and inexcusable negligence. But a
defendant in equity will not be permitted to amend his answer, after the opi-
nion of the court and the testimony have indicated in what respect it may be
modified so as to effect his purpose. .
AT the November Term of this Court, 1801, a judgment at
law was rendered in favour of Matthew and John Dobson, ad-
ministrators of John Dobson, deceased, who was the surviving
partner of Dobson, Daltera & Walker, of Liverpool, against James
Calloway, surviving partner of Trents & Calloway. The judg-
ment was rendered in an action of assumpsit, brought to recover
a large balance alleged to be due to the Liverpool firm, on closing
their very extensive transactions, which had been carried on for a
series of years. The defendant at law applied to this court for an
120 VIRGINIA.
Calloway, &c. v. Dobson, &c.
injunction to restrain all proceedings upon the judgment, charg—
ing the plaintiffs with fraud, in the rendition of their account, and
insisting that the remittances in goods, bills, and tobacco sent by
Trents & Calloway, to Dobson, Daltera & Walker, would, if they
had been disposed of to the best advantage, nearly or entirely
have extinguished the balance for which the judgment at law was
rendered. The injunction was awarded, and the plaintiff at law,
Matthew Dobson, filed a very elaborate answer, denying all
fraud, and annexing thereto a detailed statement of sales of to-
bacco, shipped by Trents & Calloway to Dobson, Daltera &
Walker, with which the defendant at law had been credited,
drawn from the books of the latter firm; which detailed account,
he declared, contained all the tobacco which had been shipped by
Trents & Calloway to Dobson, Daltera & Walker, of which
the books of the firm contained any evidence. At the Novem-
ber Term of this Court, 1806, the court rendered the following
interlocutory decree: “The court is of opinion, that the account
annexed to the defendant’s answer of the sales of tobacco, con-
signed to Dobson, Daltera & Walker, by Trents & Calloway,
which is stated by him to be a complete transcript from the
books of the former, exhibiting all the entries therein made, rela-
tive to the tobaccos which constitute the subject of controversy,
not conforming in the number of hogsheads sold, with the ac-
counts previously rendered, on which the judgment at law was
obtained, affords such reason to suspect the verity of those ac-
counts, as to entitle the plaintiff in equity, to submit that circum-
stance to the consideration of a jury : The court doth therefore
direct, that an issue be made up, and tried at the bar of this
Court, to determine whether the plaintiff be entitled to any, and
if to any, what additional credit for ninety-three hogsheads of
tobacco, consigned by them to Dobson, Daltera & Walker, and
not accounted for in the detailed account of sales annexed to the
defendant’s answer.”
At this term, the defendant moved for leave to file a supple-
mental answer, upon grounds which are considered in the follow-
ing opinion :
MAY TERM, 1807. 121
Calloway, &c. v. Dobson, &c.
The opinion of the Court was delivered by
MARSHALL, C. J.-This bill was brought to charge the origi-
mal defendants, who had obtained a judgment at law on a general
account of sales of tobacco, shipped to them by the plaintiff,
with unfairness in the rendition of that account, and calls for a
detailed account of sales, which would enable the plaintiff to de-
tect the fraud, if any was committed. The present defendant,
who is the representative of the surviving partner of Dobson,
Daltera & Walker, filed his answer, to which he annexed a de-
tailed account, which, he declared, exhibited all the information
contained in the books of his testator. On the hearing of the
cause, it appeared that the general account of sales, on which the
judgment was rendered, comprehended ninety-three hogsheads of
tobacco not included in the detailed accounts ; and this differ-
ence was considered by the court, as evidence that the tobacco
had not really been sold; in consequence of which, an issue was
directed, to ascertain the compensation to which the plaintiff was
entitled, for tobacco shipped to the testator of the defendant, and
not duly credited to him. When informed of this interlocutory
decree, the defendant finds among the books of his testator,
which was in his possession when the original answer was drawn,
further detailed accounts of ninety hogsheads of tobacco, and
moves to amend his answer, so as now to avail himself, by way
of answer, of these additional accounts.
That a court possesses the power to allow any amendments in
the pleadings while a case is depending, is not to be questioned;
and this power is liberally exercised, both in courts of equity and
common law, for the furtherance of justice. Perhaps the legal
discretion which exists in the case, acknowledges no other limit
than is necessary for its purposes of justice, and for the restraint
of gross and inexcusable negligence. A long course of expe-
rience has marked, not indeed with absolute precision, but with
Some accuracy, the extent of these limits. In courts of common
law, amendments to the pleadings have been permitted after the
argument of a demurrer, and after the opinion of the court has
VoI. I.-Q - .*
122 VIRGINIA.
Calloway, &c. v. Dobson, &c.
been understood; and amendments have also been permitted
after verdict, when a new trial has been awarded. -
Although courts of equity seem in general less trammelled by
technical rules than courts of law, they exhibit less facility in
allowing amendments to an answer, than is exhibited by courts
of law, in allowing amendments to pleadings. The instances
are rare, in which amendments to an answer have been allowed
after a cause has been heard, and there has been any expression
of opinion from the court. s
The reason is obvious. A change in the pleadings generally
promotes and can seldom defeat the justice of the cause ; where
such change may defeat the justice of the case, a court of law
invariably rejects the application for leave to amend. But in
equity, the answer of the defendant is testimony of the highest
credit, and is often conclusive. The amendment, therefore, may
defeat the justice of the case. To allow a defendant, as a general
practice, to change his answer, after having discovered precisely,
from the opinion of the court and the testimony in the cause, in
what manner it may be modified so as to effect his purpose,
would certainly be a dangerous mode of proceeding.
In this case, the defendant is required to disclose from books
in his possession the names of all the persons to whom the
tobacco of the plaintiff was sold, that he may be enabled to
examine the purchasers respecting the verity of the account.
The defendant withholds this disclosure as to ninety-three
hogsheads. After finding, that the consequences of this omis-
sion are unfavourable to himself, he offers to make it, and asks
to be placed in the situation he would have held had it been
made originally. The indulgence requested may promote the
justice of the case, but it is apparent it may endanger that jus-
tice. The defendant, who is called upon for discovering, may
disclose just as much as he pleases, may take the chance of any
advantage which the experiment may afford, with the confidence,
that its proving unsuccessful will do him no injury.
. It is extremely probable, that in this case the particular
accounts now offered were overlooked, and not purposely con-
MAY TERM, 1807. 123
Calloway, &c. v. Dobson, &c.
cealed. But there is no evidence of this, except the declaration
of the defendant himself—a declaration which may be made in
every case; admitting it to be true, it implies a gross negligence,
which is of a description so calculated for the introduction of
fraud, that the general policy of the law may require the person
who has committed it to bear the consequences.
It is certainly proper, in such a case, for courts to examine
precedents, and to respect them. Those which the research of
counsel has produced, have all been considered. The case of
The Countess of Gainsborough v. Gifford, reported in 2 Peere
Williams, 424, is certainly one in which an amendment was
allowed after a decree, in a point on which the materiality of the
amendment had been ascertained by the opinion of the court.
But the points of dissimilitude between that case and this are
very striking.
In that case, upon the first suggestion, that the answer con-
tained the admission which was relied on, and before any
opinion of the court was avowed, the mistake was asserted and
in a great measure proved.
In this, the mistake is only mentioned after the opinion of the
court has disclosed the effect of the omission.
In that case, the amendment only restored the answer to its
original form, it only replaced the averment which the answer
originally contained, which the defendant supposed and had a
right to suppose that it still contained.
In this, it introduces new and important matter which was at
the time in the power of the defendant, and ought to have been
originally inserted. -
In that case, the mistake was conclusively shown by unexcep-
tionable testimony, and was a mistake not occasioned by the
negligence of the defendant.
In this, it is shown only by the defendant himself, and
admitting all he says, must be ascribed to gross negligence.
When it is perceived, that in the case reported by Peere
Williams, the amendment was in the first instance rejected, and
was afterwards admitted with great difficulty, it is difficult to
124 VIRGINIA.
Calloway, &c. v. Dobson, &c.
resist the conviction, that in this case the application would,
without hesitation, have been denied.
In that case, it was impossible that the justice of the case
could have been impaired by the amendment, or that gross and
culpable negligence could be encouraged by it. In this case, the
reverse is the fact. -
The case in 8 Vezey (1) is nothing more than the common
case of an amendment made to an answer before the cause
comes on for hearing, perhaps before it is set for hearing.
The case in 10 Vezey (2), so far as it respects amending an
answer, refers only to the case already cited from the 8th volume
of the same reporter, and so far as it respects exceptions, states a
case previous to a hearing. - -
The case in Ambler(3) was also an amendment, made before
a hearing, by introducing a fact not to be proved by the de-
fendant himself, but which only let him in, to prove his real
case. The difficulty with which the amendment was allowed
on that occasion, furnishes strong reason for the opinion, that
it would be, without hesitation, rejected in such a case as this.
The principle laid down in Mitford (4) appears from the
note mentioned by Mr. Randolph, to go further than, from the
subsequent practice of the court of chancery, would seem to
be approved. But, admitting it in its utmost latitude, it only
goes to this : that where the proofs in a cause, show a case not
put in issue by the pleadings, an amendment will be permitted,
which shall bring the proofs and the real case before the
court.(5)
It is obvious, that these are cases far short of the present.
In none of them can there exist a question, respecting the un-
fair use which may be made of the indulgence. -
(1) Jennings v. Merton College, 8 Vezey, 79.-[Editor.]
(2) Dolden v. The Bank of England, 10 Vezey, 284.—[Editor.]
(3) Patterson v. Slaughter, Ambler, 292-4–[Editor.]
(4) Mitf. Plead. 17, 18, and 324, n., (b)—[Editor.] -
(5) 2 Madd. Ch. 375, 376. 4 Madd. Rep. 21–28. Caster v. Wood, 1 Bald-
win’s Rep. 289.-[Editor.] ..
MAY TERM, 1807. 125
Calloway, &c. v. Dobson, &c.
In this case, the amendment would go beyond any which has
ever been allowed, and that in a case where the precedent is
susceptible of infinite abuse. * *
The amended answer, therefore, cannot be received. This
is the less essential, because the defendant will not be deprived
of his right to give the actual sales in evidence to the jury.
Motion to amend overruled.
Çittttit Cotttt Of tige Jättitti'ſ
VIRGINIA, MAY TERM, 1808.
BJEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
M*CALL, SMILIE & Co. v. HARRIson ET AL.
Where a deed of trust is executed by a debtor, to secure a debt due to A, but by
mistake the name of B is inserted, instead of that of A, and A files his bill,
praying relief, &c.; a court of equity, if the mistake is clearly established,
will decree the money to be paid in the first instance to A, who is really and
ultimately entitled to it.
In such a case, the surviving trustee, having reconveyed the property, under a
decree of a court of chancery, to the heirs of the grantor in the deed, and hav-
ing afterwards died, it is not necessary that the rapresentatives of the trustees
should be parties to the suit. -
A decree is binding and conclusive, with respect to the subject matter on which
it acts, but does not affect the rights of third persons, who were not parties to
the cause in which the decree was rendered.
THE bill, which was filed in 1802, by George M'Call, and
Richard Smilie, surviving partners of M'Call, Smilie & Co.,
an English firm, states, that prior to the Revolutionary War
the firm was largely engaged in business in the then colony of
Virginia, and established a house in the town of Dumfries,

MAY TERM, 1808. 127
MºCall, Smilie & Co. v. Harrison et al.
under the direction of their factor, Henry Mitchell : that a
certain Burr Harrison, now deceased, became indebted to them
in the course of dealing, to the amount of £237 11s. 10d.,
and on the 1st of April, 1770, executed a bond, payable to
M'Call, Smilie & Co. for that amount: that for the purpose of
securing the payment of the bond, Burr Harrison executed a
deed of trust, to Gabriel Jones and Peter Hogg, conveying to
the trustees a tract of land in the county of Dunmore (now
Shenandoah), for the purposes specified in the deed. That the
deed was intended to secure the payment of several debts,
and among others the above recited debt due to M'Call, Smilie
& Co. ; but that, through mistake, the firm of John M'Call
& Co. was substituted for the real creditors, M'Call, Smilie &
Co. : that the deed of trust specified the precise sum for which
the bond was given, and carried interest from the same date:
and that the parties into whose hands the lands conveyed by
the deed had passed, subject to their lien, refused to pay to the
complainants their debt, pretending that it was due to John
M“Call & Co., according to the literal tenor of the deed. The
complainants, therefore, prayed, that the court would decree
a sale of the land, and that out of the proceeds their debt be
satisfied, and for general relief. -
The bond, a copy of the account on which it was taken, and
a copy of the deed of trust, were filed as exhibits in the
Cal ISC.
The answers of the defendants, and the state of facts, which
gave rise to the other questions in the cause, are sufficiently
detailed in the following opinion of the chief justice.
MARSHALL, C. J.-This suit is brought to obtain for the
plaintiffs the benefit of a deed of trust, which purports on its
face to secure a debt due to John McCall & Co. It is alleged
, that this debt is in truth due to M'Call, Smilie & Co., and that
John M'Call & Co., should they recover the money secured by
the deed, must be considered in this Court as receiving it for
their use. If so, this Court, according to its usual course of pro-
128 VIRGINIA.
M“Call, Smilie & Co v. Harrison et al.
ceeding, will decree the money to be paid, in the first instance,
to the person really and ultimately entitled to it.
Of the correctness of this principle no doubt can be enter-
tained. Of consequence, the inquiry is, whether the evidence in
this cause is sufficient to satisfy the Court that the debt is in truth
due to the plaintiff. -
The bill charges this debt to have been really due to M'Call,
Smilie & Co., and the representative of John M'Call, who was
the surviving partner of John M'Call & Co., who is a party to
the suit, and is brought before the Court by that process which
the law directs in the case of absent defendants, has failed to put
in an answer.
It appears that there was a close connexion between John
M“Call & Co., and M'Call, Smilie & Co., and that Henry Mitch-
ell was the agent of both firms. By the books kept by Henry
Mitchell, it appears that this deed was really taken to secure a
debt due to M'Call, Smilie & Co., and a small debt of £184s. 0#d.
due to John M“Call & Co. -
The present keeper of the books of both firms also declares,
that the debt is in truth the debt of M'Call, Smilie & Co.
To the debtor, it is unimportant which is his creditor, and
this testimony is sufficient against an absent defendant, who will
have time to set aside the decree, if he complains of it. The
debt will therefore be considered as the debt of M'Call, Smilie
& Co. Several other objections have been taken to the rendi-
tion of a decree in favour of the plaintiffs.
1st. The first is, that the proper parties are not before the
Court. The deed of trust was taken to secure, as well a debt due
to Joseph White, for which Gabriel Jones, the surviving trustee.
in the deed, and James Keith, were sureties. One other debt
due to James Ritchie, and one other debt due to Glassford &
Henderson, as the debt really due to M'Call, Smilie & Co.
Both the trustees are dead, and the surviving trustee has been
decreed to convey the trust property to the representatives of
Burr Harrison, deceased, under which decree sales have been made
to purchasers having notice of this claim, who are parties to this
MAY TERM, 1808. 129
M“Call, Smilie & Co. v. Harrison et al.
suit, and who appear to have retained a part of the purchase mo-
ney in their hands, subject to the decree of the court. There is
therefore, no necessity for making the representatives of the
trustees parties. -
James Ritchie & Co., and Glassford & Henderson, are parties,
and are before the Court.
James Keith, and the representatives of Gabriel Jones, as sure-
ties for Burr Harrison to Joseph White, ought to have been
brought before the Court. It appears, that in the court for
the county of Shenandoah, where the decree was rendered
for the reconveyance of the trust property, an exhibit was
filed, showing that a suit, instituted by White against Burr Har-
rison, in his life time, for the recovery of this debt, was dismissed
agreed, in the year 1787. This exhibit is verified by the record
of the general court. There remains scarcely a possibility, that
the sureties can remain liable for this debt, yet their interests
must be guarded, as they are not defendants. Under these cir-
cumstances, however, the Court will not insist on their being
made parties, but will require that evidence of their being satis-
fied, shall be produced from themselves, or that they shall be
secured by the plantiffs.
2dly. It is also objected, that in August, 1794, a decree was
rendered in favour of the heirs of Burr Harrison, which directed
Gabriel Jones, the surviving trustee, to re-convey the trust pro-
perty, because it appeared to the court, that the money the deed
was intended to secure, except the debt due to Joseph White,
which was settled, had been paid into the treasury of Virginia,
under an act of assembly made for that purpose. This decree is
considered as a bar to the plaintiff’s claim. I will not deny the
obligation of a decree, with respect to its subject matter, however
erroneous may be the principles on which it may have been
rendered. -
In the proceedings in this case, there are, however, several
concurring circumstances, which save the plaintiffs from the
operation the decree was probably intended to have on them.
To the original bill, neither John M'Call & Co., whose name
VoI. I.-R - -
130 VIRGINIA.
M“Call, Smilie & Co. v. Harrison et al.
was placed in the deed instead of M'Call, Smilie & Co., nor
M“Call, Smilie & Co., were parties. They are not made parties
to the bill of revivor. Their equitable interests, therefore, could
not be bound by a decree in the cause. Leave was afterwards
given to make them parties, but no bill making them parties was
ever actually filed. It is stated that a subpoena was taken out
against them, and that publication was made, but no bill in pur-
suance of the subpoena appears to have been filed.
The decree is formed upon the opinion, that the debt is dis-
charged. This is the conclusion drawn by the Court, and the
step taken, is the consequence of supposing the debt to be dis-
charged ; but the real object on which the decree acts, is the
trust property. The decree is conclusive, so far as respects this
property, but does not, under the actual circumstances, affect the
plaintiffs. - -
It is a rule, that a person who accepts a conveyance from a
trustee, with notice of the trust, is himself a trustee. In this
case, it may well be doubted, whether the purchasers of a trust
estate, under a decree to which the cestwis que trust are not
parties, are not themselves trustees; but at any rate, the real
debtors, who receive the money would, under this decree, which
did not act on the debt itself, be trustees for the creditor. The
money not being paid, but remaining in the hands of the pur-
chasers, that purchaser holds it for the party having right to it—
and may, therefore, be decreed to pay it to the plaintiffs.
There must be a decree nisi, that the defendants, the pur-
chasers, do, after security shall have been given to the absent de-
fendants, according to law, and after security shall have been
given to James Keith, surviving surety, of the debt to Joseph
White, for his own use, and for the use of the representatives of
Gabriel Jones, deceased, to save him and them harmless against
the said debt, pay out of the purchase money, by them retained,
to the plaintiffs, M'Call, Smilie & Co., the debt mentioned in the
deed of trust, to be due to John M'Call & Co.
MAY TERM, 1s0s. 131
MURDOCK, Don ALD & Co. v. SHACKELFoRD’s HERs.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
A testator lent to his son W. a tract of land for life, “ and if he has children, at
his death, he may dispose of it to them as he thinks proper, reserving to his
now wife the use of the land during her life, as long as she remains his
widow ; but if she marry, then she is to have only one-third part; the whole
or part, whichever she has, is to be held without committing waste. If my
son W. dies without heirs of his body, then the land, with the consideration
above-mentioned, to go to my son Z.,” &c. This is an executory devise to W.
in tail, after an estate for life to himself, remainder in fee to his children living
at the time of his death, which executory devise in tail is to take effect on the
contingency of his dying without children living at the time of his death.
THE complainants, English merchants, exhibited their bill
in 1803, against the defendants, heirs of William Shackelford,
deceased, stating that they had recovered a judgment in an
action of debt against the said Shackelford, in the county court
of King and Queen, in 1773, still remaining due and unsatisfied
at the institution of this suit ; that the said Shackelford died
intestate on the day of , seized and possessed of a
considerable property, real and personal ; that the said Shackel-
ford left a widow and several children, among whom his property
was divided, and that his widow was still in possession of a tract
of land of which William Shackelford died seized. The bill
further states, that letters of administration on the estate of
William Shackelford had been granted to a certain John Har-
wood, who had removed from the state, and had since died.
The plaintiffs also seek to charge the land of William Shackel-
ford with the amount of a bond for £168 15s. 8d., executed by
William Shackelford, and which they allege is lost or mislaid.
The defendants denied all knowledge of the claim asserted in
the complainants’ bill, and pleaded the statute of limitations in
bar of a recovery. They admit, that William Shackelford died
intestate in 1783, possessed of a certain tract of land derived
132 - VIRGINIA.
Murdock, Donald & Co. v. Shackelford's Heirs.
from his father, Richard Shackelford; but insist, that he had
only a life estate in the land sought to be charged. They refer
to the clause in Richard Shackelford’s will, under which the
title of William Shackelford was derived, in proof of the posi-
tion, that the interest of William Shackelford was limited to a
life estate; and they further deny, that they have ever derived
any other estate, real or personal, from their intestate William
Shackelford. * º
The following opinion of the Court contains the clause of
Richard Shackelford’s will, upon the construction of which the
right of the plaintiffs to charge the land devised by it to William
Shackelford, with his debts after his death, depended.
MARSHALL, C. J.--This cause depends entirely on the con-
struction of the will of Richard Shackelford.
The following is the material clause of that will:—“I lend to
my son William during his life, the tract of land whereon I now
live; and if he has children at his death, he may dispose of it to
them as he thinks proper, reserving to his now wife the use of
the land during her life, as long as she remains his widow ; but
if she marry, then she is to have only one-third part; the whole
or part, whichever she has, is to be held without committing
waste. If my son William dies without heirs of his body,
then the land, with the consideration above-mentioned, to go to
my son Zachariah ; and if he should die without heirs of his
body, then it is my desire, that it be equally divided between
my two daughters, Elizabeth and Frances, to them and their
heirs for ever.” ... ? -
William died leaving children, and the question is, whether
he took an estate for life, or in fee, in the lands devised to him.
That the intention of the testator was to give William only an
estate for life, has not been, and cannot, with any semblance of
reason, be controverted. The will was most probably drawn
by a lawyer, who appears to have sought for terms of art which
should secure this intent.
1st. The estate to William is expressly limited to his life.
MAY TERM, 1808. 133
|
Murdock, Donald & Co. v. Shackelford's Heirs.
2dly. It is not given for that period, but is lent—a distinc-
tion to which some importance has been attached.
3dly. The rights of the wife are secured by giving her the
whole estate, while she was his widow, and her dower in the
event of a second marriage. - --
It is seldom that the intent of a testator, that the first devisee
should take only an estate for life, appears as conclusively, as in
this case. -
It is apparent that the testator intended to give to William an
estate for life, remainder to the wife of William during her
widowhood, with the right of dower in case of marriage, remain-
der to the children of William in such proportions as he should
appoint. Thus, William has an estate for life, with power to
dispose of the whole estate among his children living at his
death. *; .
If the will stopped with these provisions, the intent of the
testator would be obvious; and as no rule of law would conflict
with that intent, the suit would probably never have been in-
stituted. -
But the subsequent provisions of the will are supposed to
manifest a clear intent, incompatible with, and which must
overrule the intent, so plainly expressed in the first clause, to
give William only an estate for life. -
The words which are supposed to evidence an intent, which
cannot stand with a limitation of the estate to William for life,
are these : “If my son William, dies without heirs of his body,
then the land to go to my son Zachariah.” These words are
said to create an estate tail in William.
That it was the intention of the testator, to postpone Zacha-
riah, until there should be a failure of the issue of William, is
believed; and that in the event contemplated, William would
have taken an estate tail, by implication, is perhaps the sound
legal interpretation of the will. But what is that event 2
The obvious answer is, the death of William, without children.
It is obvious, that the testator intended to prefer all the issue
of William to Zachariah, and, therefore, that the issue of
134 VIRGINIA.
Murdock, Donald & Co. v. Shackelford’s Heirs.
William, must be exhausted, before the remainder to Zachariah
could vest. In that case, the issue of William, if not children,
must take in tail, for which purpose, the estate tail must be in
William, or it could not descend on them. But the words of
the testator must be totally disregarded, if we do not admit,
that the children of William, living at his death, are to take in
preference to the issue of such child as may be dead. To
enable those children to take, in the manner described by the
testator, the estate to William, must be limited to an estate for
life : to enable the issue to take, if there be no child, the estate
of William must be enlarged to an estate tail. These two in-
tents are said to be incompatible with each other, and it is con-
tended, that the former must yield to the latter. r
If they are, indeed, incompatible, it would not follow, that
the former must yield to the latter. The children living at the
death of William, so far as the words of the testator are to be
regarded, were the first objects of his bounty. They were
preferred to the issue of such, as might then be dead, and as
they might take an estate in fee, no good reason is perceived,
why this superior object should be made to yield to another,
which was, in the mind of the testator, inferior to it. But no
incompatibility of intent is perceived. The devises may well
stand together.
This is an executory devise to William, in tail, after an estate
for life in himself, remainder in fee to his children, living at
the time of his death, which executory devise in tail, is to take
effect on the contingency of his dying, without children living
at the time of his death. This construction gives full effect to
the whole intention of the testator, as expressed by himself,
and is not perceived to be repugnant to any rule of law.
This case very strongly resembles that of Roy v. Garnet,(1)
which was very maturely considered, both by the bench and
bar. The doubt, in Roy v. Garnet, was, whether in the event
of the devisee for life, dying without male children, his estate
(1) 2 Washington, p. 11, second edit.—[Editor.]
MAY TERM, 1808. 135
J. Murdock & Co. v. Hunter’s Representatives.
would be enlarged by the implicative devise, so as to enable
his issue to take before the remainderman ; but it was conceded
by the counsel for that issue, that if any male child, or children
of the devisee for life, had been living at the time of his death,
such male child or children must have taken under the will,
and the estate of the devisee for life would not have been en-
larged into an estate tail. -
DECREE. This cause came on this day to be heard, on the
bill and answer, and the last will and testament of Richard
Shackelford, deceased, filed as an exhibit, and was argued by
counsel; on consideration whereof, the Court being of opinion,
that the lands in the hands of the defendants are not charge-
able to the plaintiffs, it is decreed and ordered, that their bill
be dismissed, &c.
J. MURDOCK & Co. v. HUNTER’s REPRESENTATIVEs.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
HoN. CYRUS GRIFFIN, District Judge of the United States.
The subscribing witness to a bond being dead, proof of the handwriting of the
attesting witness, if unaided and unopposed by other evidence, is sufficient to
establish the execution of the bond. *.
The decisions of the courts of England, made prior to the Revolution, are of
binding authority on the courts of Virginia. Those made since have not that
character, but when they are reasonable, conformable to general principles, and
do not change a rule previously established, they will not be entirely disre-
garded. .
A bond creditor is not bound to pursue the personal assets of his debtor in the
hands of others than his personal representative, if such pursuit threatens to
136 VIRGINIA.
f
J. Murdock & Co. v. Hunter's Representatives.
be tedious, intricate, and unproductive. But if the personal estate is in the
hands of legatees, who may be easily brought before the court, they ought to
be made parties to the suit. [See Corbet et al. v. Johnson's Heirs, ante,
p. 77.]
THIS was a bill in chancery, filed in August 1805, by the
plaintiffs, partners in trade, and subjects of the king of Great
Britain, to subject certain lands in the county of Princess Anne,
in Virginia, of which William Hunter died seized, in the hands
of devisees, to the payment of a bond, purporting to be executed
by one Thomas Claiborne, and the said Hunter. The bond was
in the penalty of £316 9s., to be discharged by the payment of
£158 4s. 5d., and bears date the 23d of September, 1774, pay-
able on the 23d September, 1775, to Archibald Govan, and was
attested by Andrew Ronald. At the period of the institution of
this suit, both the obligors and the attesting witness were dead,
and the plaintiffs adduced proof of the handwriting of Ronald,
which was the only evidence offered of the execution of the
bond. William Hunter died in 1777, having first made his
will, appointing executors, who refused, or failed to qualify, and
Elizabeth Tenant took out letters of administration, with the
will annexed, of William Hunter; and after her death, Thomas
Wishart qualified, as administrator of the estate of Hunter un-
administered by Elizabeth Tenant. Wishart died, and Hancock
qualified, but before this suit was brought, Hancock was also
dead, and no subsequent administration was granted : so that at
this period, there was no personal representative of Hunter.
William Hunter devised a tract of land in fee to James
Tenant, lying in Princess Anne county, and containing by esti-
mation, 517 acres, who died seized thereof. James Tenant de-
vised the said land to Elizabeth Tenant, his mother, for life,
remainder to his eldest sister, living at her death. At the death
of Elizabeth Tenant, Elizabeth White, the wife of William
White, became entitled to the Princess Anne estate, under the
will of James Tenant, and when this bill was filed, the said
MAY TERM, 1808. 137
Murdock & Co. v. Hunter’s Representatives.
Elizabeth and William White, the only defendants in this
cause, were seized and possessed thereof. The plaintiffs in their
bill, allege that the personal estate of William Hunter, deceased,
was either exhausted, or could not be reached by the death of his
administrators and their sureties, and the insolvency of some of
them, and pray a decree for the sale of the said land, to satisfy
their debt.
In their answer, filed in 1807, William and Elizabeth White
say, that William Hunter died, possessed of a large personal
estate, more than sufficient for the payment of all his debts, and
refer to an inventory and appraisement of his estate, (which is
made a part of their answer,) taken on the 15th day of Septem-
ber, 1777, by which the personal estate of William Hunter is
estimated to have been worth £246S 3s. : that many of the
negroes of the estate were carried away by the British troops,
during the Revolutionary War, and have never since been heard
of, and that the residue of the personal estate has been long
since distributed among the legatees of William Hunter. They
deny the sufficiency of the proof adduced, to establish the exe-
cution of the bond by William Hunter. But if the Court should
be of a different opinion, they insist, that after the lapse of thirty
years, the plaintiffs have no right to subject the real estate of
which Hunter died seized, to the payment of this bond, since, at
the time it became payable (September 1775,) there was no legal
impediment to the prosecution of this claim, Great Britain and
her colonies in America being then politically united, and ever
since the termination of the Revolutionary War, the courts of
Virginia have been open to the prosecution of suits by British
subjects, against citizens of Virginia : that there is now no legal
representative of William Hunter, nor can any of his papers or
books be found, from which a correct statement of his affairs
can be made out; whereas, had the present demand been exhi-
bited in due time, the responsibility now sought to be fixed on
these defendants, would have attached to others. They admit,
that the real estate which the plaintiffs now seek to subject to
Vol. I.-S
F 38 VIRGINIA.
Murdock & Co. v. Hunter's Representatives.
the satisfaction of this claim, was derived from William
Hunter.(1)
(1) No lapse of time bars actions upon instruments, under seal, for the pay-
ment of money; but the lapse of twenty years creates a presumption of pay-
Jment, which may be repelled like any other presumption. Jackson v. Pierce,
10 Johns. Rep. 414; Bailey v. Jackson, 16 Johns. Rep. 210. An acknowledg-
ment of the debt within twenty years, or a demand of payment, or circumstances
explaining satisfactorily why the demand was not made sooner, will repel the
presumption ; so, where for the portion of the time, the plaintiff was disabled to
sue, that portion will be deducted. Bailey v. Jackson, This doctrine of presump-
tion of payment, arising from the lapse of twenty years, is a very familiar one
in our courts. Mr. Robinson has examined the Virginia cases on this subject, in
his valuable work. 1 Rob. Practice, 113–14. q. v. If a shorter period is relied
on, the presumption must be corroborated by circumstances. 1 Wash. C. C. R.
323. In Dunlap & Co. v. Ball, [2 Cranch, 180; 1 Con. Rep. 383, which, as:
regards the question of presumption of payment, is identical with the above case.
of Murdock & Co. v. Hunter’s Rep., the suit was brought in 1802, upon a bond.
executed in 1773, by the defendant, a citizen of Virginia, to the plaintiffs, Bri-
tish merchants, residing in Great Britain. The case went to the supreme court,
on a bill of exceptions to the opinion of the court below, instructing the jury,
that from the length of time, stated in the facts agreed on, the bond, in law, was.
presumed satisfied; unless they should find from the evidence, that interest was
paid on the bond, within twenty years from the 5th of September, 1775, (the
time of the last payment;) or that a suit or demand was made, on the said bond,
within twenty years from the last mentioned time, exclusive (in both cases,) of
five years, five months, and twenty days, taken out of the act of limitations.
The supreme court said, (Marshall, C. J., delivering the opinion of the court,.)
that the only circumstance which could create a question in the case was, that.
twenty years had not elapsed, exclusive of the period, during which the plaintiffs,
were under a legal disability to recover before the action was brought: that the
doctrine of the presumption of payment arising from lapse of time, was a rea--
sonable one, and might be rebutted by any facts that would destroy the reason
of the rule. That no presumption could arise, during a state of war, in which
the plaintiff was an alien enemy, was too clear to admit of doubt. But it was.
not so clear, that upon a bond so old as this, the same length of time, after the
removal of the disability, was necessary to raise the presumption of payment, as
would be required if the bond had borne date at the time of such removal. It
being satisfactorily shown to the court, that it was the general understanding in:
Virginia, that British debts, could not be recovered there, earlier than 1793,
when the first decision of the superior courts, establishing the right of recovery
was rendered ; the only question was, whether, in case of an old debt, the same
MAY TERM, 1808. 139
Murdock & Co. v. Hunter's Representatives.
The opinion of the Court was delivered by
MARSHALL, C. J.-In this case, two points are made at the
bar ; 1st. That the bond on which the suit is instituted, is not
sufficiently proved. 2d. That the proper parties are not made.
1st. The bond purports to have been executed by Thomas
Claiborne and William Hunter, is attested by Andrew Ronald,
who is since dead, and the only proof offered, is that of the hand-
writing of the subscribing witness.
The question, whether this testimony is sufficient to establish
the execution of the bond, without any proof of the hand-writing
of the obligor, has been argued on principle and on authority, and
is of considerable importance in those old cases, which are fre-
quently brought before this Court.
The general principle is, that the best evidence of which the
nature of the case will admit, ought to be adduced.
The subscribing witness himself being dead, the best proof
that he attested the bond is, that the signature, purporting to be
his, is in his hand-writing. This testimony, therefore, proves,
that he subscribed his name to the obligation ; but whether its
execution shall be inferred from this fact, or must be proved by
other testimony, so that proof of the death and hand-writing of
the subscribing witness, simply dispenses with the necessity of
producing that witness, is a question, which, on principle alone,
might be decided the one way or the other, and the decision
would be supported by almost equal strength of reasoning.
Positive proof of the execution of a bond is required, where
that proof is attainable. Where it is unattainable, the law must
time was required to raise the presumption, as in the case of a debt accruing
since the impediments had been removed In such a case, it was not easy to
establish a new rule, and the court thought it best to adhere to the old decisions,
that twenty years must have elapsed, exclusive of the period of the plaintiff’s dis-
ability, and were of opinion, that the court below erred, in directing the jury, that
payment ought to be presumed. The cause was remanded to the circuit court, to
be there tried, with directions, that there was no presumption of the payment of
£he said bond, as directed by the said circuit court. *-
140 - VIRGINIA.
Murdock & Co. v. Hunter's Representatives.
be satisfied with circumstantial evidence. If the plaintiff, by
proving the death and hand-writing of the subscribing witness,
was only let in to prove the execution of the bond by other tes-
timony, it would seem to be sufficient to prove the death of the
subscribing witness, and to identify his person by any other
proof than that of his hand-writing, as, for instance, that he was
the only person of that name, in a situation to render it probable
that he could have attested the bond. Since it is not only neces-
sary to prove the death, but to prove the hand-writing, of the
subscribing witness, it would seem that something further than
the mere permission to establish the execution of the bond by
other testimony, was gained by this proof. This can only be
the inference which is drawn by the law, that if the person who
attested the bond was present, he could and would prove its exe-
cution. This, however, is only circumstantial proof, and may
certainly be strengthened by other circumstances, as by proof of
the hand-writing, or the acknowledgment of the obligor. I was,
myself, at first, inclined to think that, on principle, this additional
proof was indispensably necessary, but an observation made by
the plaintiff’s counsel in argument has considerable influence.
It is, that if the obligor acknowledges, and thereby adopts the
signature as his, in the presence of the subscribing witness, he is
as much bound as if his name had been written by himself. It
would seem, then, that the positive necessity of proving the hand-
writing of the subscribing witness, although he be dead, would
justify the opinion, that the law infers from this proof, that the
subscribing witness would, if present, prove the execution of the
bond, and that a naked case, standing singly on this proof, would
be in favour of the plaintiff. But this evidence, which is merely
circumstantial, may be met by other circumstantial evidence.
Whatever deducts from it, may, and ought to be, weighed against
it. It is, therefore, always advisable to support it by other testi-
mony, if such other testimony be in the power of the plaintiff.
On passing from principle to authority, it may not be impro-
per to premise, that as the common law of England was, and is,
the common law of this country, and as an appeal from the courts
MAY TERM, 1808. 141
Murdock & Co. v. Hunter's Representatives.
of Virginia lay to a tribunal in England, which would be govern-
ed by the decisions of the courts, the decisions of those courts,
made before the Revolution, have all that claim to authority,
which is allowed to appellate courts. Those made since the Revo-
lution, lose that title to authority, which was conferred by the
appellate character of the tribunal which made them, and can
only be considered as the opinions of men distinguished for their
talents and learning, expounding a rule, by which this country,
as well as theirs, professes to be governed. An opinion, avow-
edly changing a rule, would certainly deserve much less consi-
deration, than one declaring the rule on a point which appears
not to have been well settled.
The first decision of this question, which has been cited at the
bar, is that reported by Viner, which appears to have been made
at nisi prius, and is in favour of the opinion, that the proof of the
hand-writing of the subscribing witness, who is dead, is suffi-
cient, if unopposed, to establish the execution of the bond.(2)
Previous to this, however, the point would seem to have been
noticed by Lord Holt, at nisi prius, in a case reported in I Ld.
Ray. 734. “A deed was produced, to which there were two
witnesses, one of whom was blind. It was ruled by Holt, that
such deed might be proved by the other witness and read, or
might be proved, without proving that the blind witness is dead,
or without having him at the trial, proving only his hand. And
so it was done in this case.” (3)
This report is too indistinct, and too short, to be satisfactory.
It would rather seem, however, that the deed was proved, by
proving the hand-writing of the blind witness. Perhaps, in addi-
tion to this, the execution of the deed was proved by the other
(2) “Where there are two witnesses to a deed who are dead, if there be full
evidence to prove one of their hands, and any evidence that endeavours have
been used to find one to prove the other's hand, it is sufficient; for perhaps the
witness might be a stranger, and it would be a hard task to prove his hand; per
cur. Cumb. 248. Pasch. 6 W. & M. in B. R., in case of Smart v. Williams.”
12 Winer's Ab. 223. § 3, title Evidence.—[Editor.]
(3) Wood v. Drury, 1 Ld. Ray, 734–LEditor.]
142 VIRGINIA.
Murdock & Co. v. Hunter's Representatives.
witness, and that which would indicate the contrary, may be
ascribed to the inaccuracy of the reporter. I am inclined to
think it is.
In the cases cited from Strange, Peere Williams, Atkyns and
Douglass, supplemental proof was offered and received, but the
question, whether without that supplemental proof the execution
of the bond would be established, by proving the death and hand-
writing of the subscribing witness, was not made to the court, nor
decided. It would seem that considerable weight was given to
this additional testimony. -
In 1790, in the case Wallace v. Delancy, (4) at nisi prius,
Lord Kenyon decided this question directly, and decided it
against the sufficiency of the proof of the hand-writing of the
subscribing witness, if unaided by other testimony. -
The case of Barnes v. Trompowsky, (5) which was decided
in 1797, while Lord Kenyon was on the bench, turned upon the
necessity of proving the hand-writing of the subscribing witness,
not on the sufficiency of that proof; for in that case, the hand-
writing of the obligor was proved. }
The case of Adam & Wife, executrix v. Kerr,(6) was decided
in 1798, and dispenses with other proof than that of the hand-
writing of the subscribing witness. Such proof was declared to
be evidence of every thing on the face of the paper. In this
case, the rule for a new trial was refused by the court of common
pleas, so that the point was not permitted even to be argued.
The case of Prince v. Blackburn, (7) reported in 2 East, and
decided in 1802, was upon the question of the admissibility, not
of the sufficiency of the proof. But Judge Le Blanc, before
whom the cause was tried at nisi prius, reported the testimony,
and takes no notice of any supplemental evidence. If none was
given, this case confirms that of Adam v. Kerr. Whether it
was given or not, does not certainly appear.
(4) Reported in a note to Barnes v. Trompowsky, 7 Durnf. & East, 266–
[Editor.]
(5) 7 Durnf. & East, 265–LEditor.]
(6) I Bos. & Pul. 360,-(Editor.]
(7) 2 East, 250,—[Editor.]
MAY TERM, 1808. 143
Murdock & Co. v. Hunter’s Representatives.
In his Law of Evidence, Mr. Peake supposes the law to be now
settled in England, in conformity with the decision of Adam v.
Kerr. He states the determination to have been made in a case
where the subscribing witness was dead; but does not say the
law would be otherwise in any other case, where the disability
of the subscribing witness was permanent, nor is there any
reason for distinguishing such a case from one where he was
actually dead. *…
From this review, the law appears to be now settled in En-
gland, that if the subscribing witness be dead, proof of his hand-
writing is sufficient to establish the execution of the paper he has
attested; but it has been decided by cases since the Revolution,
which are not authority in the United States. When, however,
they are reasonable, are conformable to general principles, and
do not change a rule previously established, such decisions cannot
be entirely disregarded. The decisions upon this point appear
to be of this character, and the Court is inclined to the opinion,
that in a case unsupported and unopposed by any other circum-
stance whatever, this proof would be deemed sufficient to estab-
lish the execution of the bond.(8)
(8) The cases cited by the Chief Justice, with some more modern English.
decisions, have all been reviewed by Mr. Starkie, in his treatise on the Law of Evi-
dence. 1 Starkie 337 to 343 inclusive, Metcalf's edition. He lays down the
general rule, as deduced from that review, to be, that where there have been suffi-
cient attesting witnesses, whose absence is satisfactorily accounted for, (as that
they are dead, out of the country, infamous, have become interested, &c.) the
proper proof is by giving evidence of the hand-writing of the attesting witnesses;
and it is usual, he says, in such cases, to give evidence also of the hand-writing of
the obligor. And where there are two attesting witnesses, one of whom is dead,
and the other out of the country, (as in the case of Adam v. Kerr, Supra,) proof
of the hand-writing of the deceased witness is sufficient evidence of the execution.
of the paper, without proof of the hand-writing of the absent witness, or of the
obligor; so, where one of the attesting witnesses, after diligent inquiry made,
could not be found, and the other had become interested since the attestation, it.
was held that evidence of the hand-writing of the latter witness was sufficient
proof, Cunliffe v. Sefton, 2 East, 183; and where one was dead and the other
denied his signature, Lord Holt admitted evidence of the hand-writing of the
former. Burton v. Toon, Skinn. 639. For a reference to the leading American.
144 VIRGINIA.
Murdock & Co. v. Hunter’s Representatives.
-*— -*-
In the case formerly decided in this Court, there were circum-
stances which rendered the proof of the hand-writing of the wit-
ness unsatisfactory. It was proved that there were two men of
the same name, and it could not appear from the hand-writing of
the witness, by which of them the bond was executed.
That there are in this case two obligors, does not seem sufficient
to take it out of the rule. It is, however, possible, that a signa-
ture may have been added after the attestation, and consequently,
decisions, as to the proof of hand-writing of the subscribing witness, where he is
dead, &c. and its sufficiency, see Mr. Metcalfe's note (1), I Starkie, 342. See
also opinion of Carr, J. in Gilliam's Administrator v. Perkinson’s Administrator,
4 Rand. 327, and of Green, J. in Gregory v. Baugh, 4 Rand. 327, and the au-
thorities there cited. It is said in Spring v. The S. Carolina Insurance Company,
8 Wheat. 268; 5 Con. Rep. Sup. Ct. U. S. 434, to be the practice of that court,
to require proof of the hand-writing of both the dead or absent witness, and of the
obligor. That this has not been, however, the invariable practice of that court, at
least in the case of old bonds, is obvious, from the case of Coulson v. Walton, et al.
9 Peters, 62. In that case the genuineness of a bond thirty-five years old at the
filing of the bill was drawn in question. The obligor and obligee, and one of the
attesting witnesses were certainly dead, and the other attesting witness was sup-
posed to have been killed by the Indians many years before. Three witnesses
deposed to the hand-writing of the first mentioned witness, but no proof was offered
of the hand-writing of the obligor, or of the other witness. The court cited the
doctrine laid down in Barr v. Gratz, 4 Wheat. 231, “that where a deed is more
than thirty years old, and is proved to have been in possession of the lessors of
the plaintiff in ejectment, and actually asserted by them, as the ground of their
title in a chaneery suit, it is, in the language of the books, sufficiently accounted
for, and it is admissible in evidence, without regular proof of its execution by the
subscribing witnesses:” and held the bond sufficiently proved, by the proof of the
hand-writing of the deceased attesting witness. See also Winn et al. v. Patterson,
9 Peter's Rep. 663; where, under the circumstances of the case, even a copy of a
recorded power of attorney, forty years old when it was offered as evidence, (the
loss of the original having been accounted for), was admitted on proof of the
hand-writing of one of the attesting witnesses, the other being presumed to be
dead after thirty years. The proof of the hand-writing was the deposition of the
deputy clerk of the court where the power was recorded. The deponent stated that
he was familiar with the hand-writing of the witness, (who was a justice of the
peace, and who signed it as such ;) that he was dead; that he must have believed
the official signature of the witness to have been genuine at the time, or he would
not have admitted the paper to record, and that the paper offered was a true copy
from the record, he having compared it with the record of the original made by
himself.
MAY TERM, 1808. 145
Murdock & Co. v. Hunter’s Representatives.
circumstances less decisive may outweigh the inference drawn
from the hand-writing of the subscribing witness, than would be
required in the case of a single obligor.
The face of the paper is not absolutely free from suspicion.
The signature of Hunter bears such a resemblance to the charac-
ter of the writing in which the bond is filled up, and with which
the name of Claiborne is signed, as to excite some suspicion. If
this circumstancestands alone, it cannot be much regarded, but if it
should be aided by others, it may deserve consideration. In a
case where the parties originally managing the cause are dead,
and the person now looked to for testimony has been induced by
his counsel to suppose that his testimony would not be required
at this term, such light suspicion may induce a suspension of the
decision until another term. - -
The second point is, that proper parties are not made in this
CallSC.
In the case of Corbet et al. v. Johnson’s Heirs,(9) it was de-
cided in this Court, that a bond creditor was not bound to pur-
sue the personal assets into the hands of others than the repre-
sentative of the debtor, if such pursuit threatened to be tedious,
intricate, and unproductive. This case is supposed to have
established the principle, that in no case whatever, is the bond
creditor bound to go beyond the legal personal representative of
the debtor. In support of this construction of that opinion, the
plaintiff relies on these expressions. “With respect to the cre-
ditor, unless it be for his advantage, the personal estate may be
said to be exhausted, when there are no longer assets in the
hands of the executor.” These words are used with reference
to general dicta, found in cases cited by the heir, which declare,
that the personal estate must be first exhausted, before the cre-
ditor would receive the aid of a court of equity against the real
assets, and are intended to show the sense in which those dicta
ought to be understood. They do not lay down a substantive,
independent principle.
(9) Sce this case reported ante, page 77,
Vol. H.—T
146 ~ VIRGINIA.
Murdock & Co. v. Hunter’s Representatives.
If, in the case of Corbet et al. v. Johnson’s Heirs, the personal
estate, instead of being wasted, had been in the hands of lega-
tees, who could with ease have been brought before the Court,
I should have directed them to be made parties to the suit, and
if such was the fact in this case, the opinion delivered on that
occasion, would not be considered as opposed to a similar direc-
tion. But such does not appear to be the fact.
The answer of the heir does not allege personal property in
the hands of the legatees. On the contrary, it seems to rely on
the waste of that property, as an objection to the recovery of
the plaintiff; because, the resort of the heir against the personal
fund is lost. The fact of an existing personal fund is not proved,
and if it was proved, we are not sure that the Court could notice
it, in contradiction to the allegations of the parties.
The case then, appears to stand on the same principles in this
particular, with that of Corbet et al. v. Johnson’s Heirs, and the
Court adheres to the opinion given in that case. But no decree
will be given at this term, because the Court is not satisfied under
the particular circumstances of the parties, to declare, that this
is the deed of William Hunter, although, perhaps, the difficulty
will not be deemed sufficient at the next term, to prevent a ter-
mination of the suit. . . . .
There is at present, certainly one conclusive impediment to a
decree, which has not been mentioned, because it is presumed,
that the plaintiff is able to remove it, and because, should it be
removed, the Court would still suspend its decision on the obli-
gation, for further proof from the defendants. That impediment
is the want of title in the plaintiff. There is no evidence, that
the bond was taken for his benefit.(10) -
An issue may be directed, if the plaintiff has no objection.
If he has, it will probably be directed at the next term, provided
the defendant then exhibits circumstantial testimony against its
being the deed of William Hunter.
(10) The bond purports to have been executed by Thomas Claiborne and
William Hunter, in favour of Archibald Govan, and there is no assignment en-
dorsed upon it to the plaintiffs, or to any other parties whatsoever-[Editor.]
circuit court of the vinited states.
VIRGINIA, MAY TERM, 1809.
REFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
BRYDIE’s ExECUTor v. MILLER, HART & Co. ET AL.
Where a final settlement of the accounts of a mercantile firm has taken place,
after its dissolution, shortly after which, one of the partners dies, and a bill is
filed by the executor against the surviving partners, to compel a resettlement,
the deceased partner being of sound mind, when the settlement was made, and
deliberately sanctioning it, a court of equity will not distürb the former settle-
ment, unless it be clearly shown, that errors were committed, or that impo-
sition was practised upon the deceased partner, to induce him to sanction it.
But see Dunbar v. Miller, Hart & Co., supra.
ON the 13th day of June, 1796, James R. Miller, Patrick
Hart, and William M’Clure, constituting the firm of Miller,
Hart & Co., of the city of London, entered into partnership,
with Alexander Brydie, of the city of Richmond, Virginia.
By the articles of copartnery, it was stipulated, that the new
firm should be established in Richmond, and transact business
under the style of M:Clure, Brydie & Co.: that the firm should
continue four years, from the 1st of September, 1795, the im-
f
148 - VIRGINIA.
Brydie's Executor v. Miller, Hart & Co. et al.
mediate management of its business to be committed to Alex-
ander Brydie, subject to the control and direction of the majo-
rity, “in matters controversial, touching the execution of old,
or the adoption of new plans, in the course of said business,”—
and that the business of the house of M*Clure, Brydie & Co. in
Europe, should be done by Miller, Hart & Co., on the same
terms on which they had transacted the business of the firm of
Alexander Brydie & Co., then lately dissolved. A very active
business was carried on, during the existence of the firm of
M“Clure, Brydie & Co., and frequent and heavy shipments of
tobacco were made to Miller, Hart & Co. in London. The firm
expired by limitation, on the 1st of September, 1799, and a
formal settlement of the accounts of M*Clure, Brydie & Co..
and Miller, Hart & Co. was entered into, between William
M'Clure and Alexander Brydie. Shortly after this settlement,
which was sanctioned and approved by Brydie, the said Brydie
died, and a bill was filed in 1802, in the court of chancery
of the state of Virginia, by his executor, against William
Brown & Co. of Virginia, and Miller, Hart & Co. of Lon-
don, charging numerous and gross errors, to the prejudice
of his testator in the account, settled between M*Clure and
Brydie. The bill called for a new settlement of the accounts
between the two firms, and prayed that the other defendants,
William Brown & Co., might be restrained from making any
further remittances of the large sums of money, alleged to be
in their hands, belonging to Miller, Hart & Co., but that the
same might be decreed to be paid to the plaintiff, as executor of
Alexander Brydie, whenever the amount still due to the estate
of his testator could be ascertained by a resettlement of ac-
counts.(1) The cause was subsequently removed, by petition
of Miller, Hart & Co. to this Court,(2) and a very elaborate an-
(1) As to the mode of proceeding in Virginia, against a non-resident debtor,
having effects within the commonwealth, see Tate's Digest, 32, 33, 34, tit.
Attachments, and the notes.—[Editor.] - -
(2) See Judicial Act of 1789, § 12. Story’s ed. L. U. S., vol. 1. p. 57–8.-
[Editor.]
*Fº
MAY TERM, 1809. 149
Brydie's Executor v. Miller, Hart & Co. et al.
-**
swer was thereupon filed by them, denying each and all the charges
of fraud and misconduct on their part, in the transaction of the
business of M*Clure, Brydie & Co., and relying upon the former
settlement, approved by Alexander Brydie, in his life time, as a
bar to any future investigation of their accounts. The several
specifications of the bill, with the answer of Miller, Hart & Co.
to each, are stated and commented on, in the following opinion.
MARSHALL, C. J.-The object of this suit is to open an ac-
count which was settled between the parties, in the life time of
the testator of the plaintiff, and to have a re-settlement of all the
transactions of M:Clure, Brydie & Co. -
It is the right of every individual to exercise his own judg-
ment on his own affairs, and to arrange them in such a manner
as his own will may dictate. Where this arrangement is made
under the fair exercise of judgment, without imposition, and
with a requisite knowledge of the subject, it is certainly conclu-
sive, unless the arrangement be in its nature alterable at the will
of the person who has made it. ',
It is a necessary consequence of this right, that an individual
who has settled his accounts with another, and arranged the
transactions between them, in a manner which receives the full
and free assent of his mind, has a right to consider those trans-
actions closed; and is consequently bound so to consider them.
That which might before have been a matter of controversy, is
adjusted by mutual consent ; and claims which might have been
uncertain, are reduced to certainty. It is no objection to this
adjustment, that some sacrifice may have been made. The party
had a right to make the sacrifice. He had a right to balance in
his own mind, the advantages of the settlement against its disad-
vantages; and if in his judgment the former preponderated, no
other individual has a right to say that he was mistaken, and that,
therefore, transactions which he had closed shall remain open.
It follows, that an account settled between two individuals,
each exercising his own free judgment on every part of it, is
binding on both, as to all the items of that account. Mistakes
150 VIRGINIA.
Brydie’s Executor v. Miller, Hart & Co. et al.
may be corrected, omissions may be supplied, impositions may
be relieved against, but a principle, understood, considered, and
agreed upon, by a party in a situation fairly to exercise his own
judgment, and to act in conformity with that judgment, must
bind himself and his representatives, in, and out of court. To
controvert these principles, would be to question the right of a
man of full age and sound mind, to manage his own property,
and to insist on transferring that right to another.
That Mr. Brydie was capable of acting for himselſ, that he had
a full knowledge of the subject, into the adjustment of which he
entered, that his judgment was exercised free from undue influ-
ence of any kind, is not denied, ccrtainly is not disproved. It is
said, that his health was too delicate for laborious research or .
execution. Should this be admitted, he had clerks to perform
what was too toilsome for himself, and the subject to be settled
had long been familiar to him. In such a case, it surely must be
necessary to show, that items have been introduced, which were
not understood, before his own settlement shall be subverted.
Great errors are alleged to exist in the settlement. Errors so
great and so manifest, that the Court ought to correct them. An
inquiry into this allegation, will now be made. The first error
alleged is, in the premiums of insurance. M'Clure, Brydie &
Co., directed the tobacco to be insured at a specified price, and
Miller, Hart & Co. insured that tobacco at a higher price. Mil-
ler, Hart & Co. held three-fourths of the interest of M*Clure,
Brydie & Co., and insist that, under the terms of the co-partner-
ship, they had a right to insure upon the principles upon which
they acted. . .
To simplify the question, I will suppose Miller, Hart & Co.
to have misconstrued articles, and that the point, if depending on
them alone, would be decided in favour of the plaintiff. It re-
mains to inquire, whether Brydie has not completely sanctioned
this act. - - - - t
Accounts of sales, exhibiting the premiums paid for insurance,
were regularly received. Of consequence, their conduct, on this
subject, was completely understood by Mr. Brydie. It does not
MAY TERM, 1809. i 151
Brydie's Executor v. Miller, Hart & Co. et al.
appear, nor is it alleged, that he ever expressed any dissatisfac-
tion at this proceeding. On the contrary, by receiving these ac-
counts, and entering the balances without objection, he tacitly
and impliedly sanctioned the principle on which Miller, Hart
& Co. had acted. It gave them his authority to proceed in the
same line of conduct. Had the case stopped here, it would have
been going very far to say, that Mr. Brydie might, after the
business was closed, charge Miller, Hart & Co. with the extra
premium they had paid for insurance, under the impression, very
justifiably entertained, that he approved their conduct. But the
case does not stop here. A full settlement afterwards takes place,
and Mr. Brydie, with a full knowledge of the fact, admits this
item of charge. To controvert it now, unless it could be
proved that some imposition was practised on him, would be to
deny the right of an intelligent merchant to settle and close any
one of his accounts. - :
I do not mention the circumstance of Mr. Brydie’s taking cre-
dit for this extra insurance in the cases of lost and damaged car-
goes, because there may be some question about the fact, and be-
cause I do not think the case requires the aid of that fact. To
afford a pretext for revising this item, it ought to be shown, that
some imposition was practised on Mr. Brydie. For this purpose,
it is alleged in the bill, that Miller, Hart & Co. did not pay these
premiums in reality, but stood insurers themselves. This alle-
gation is totally unsupported, and is positively denied, in the
answer. It is therefore to be considered as untrue.
But the plaintiff requires, that authenticated copies of all the
policies of insurance should be transmitted to this country. The
defendants refuse to accede to this demand, and declare their readi-
ness to exhibit the policies to any person whom the plaintiff may
employ, to inspect them. The policies are said to be so numer-
ous, as to form too bulky a package, to be sent without necessity.
They transmit copies of the particular policies, specifically re-
quired by the plaintiff. -
Had this account never been settled, or was any circumstance
in proof which might give countenance to the allegation of fraud,
152 VIRGINIA.
Brydie's Executor v. Miller, Hart & Co. et al.
made in the bill, the Court would not hastily overrule the de-
mand for the production of the policies. But the account has
been settled. Mr. Brydie has been satisfied that these premiums
have been actually paid, and there is no single circumstance in
the case to warrant the suspicion which has been expressed.
The demand, then, that authentic copies of the policies should be
transmitted to this country, is most unreasonable. It is founded
on nothing which has a semblance of right. -
If this subject could be closed now, I should feel no difficulty
on this part of the case. But as an account is to be taken, I
shall leave the plaintiffs at liberty to demand a view of the poli-
cies in London.
The second error to be corrected, is the item of £33s. on
each hogshead, of a cargo sold to Holder for risk of damage on
the tobacco. -
The reasoning applied to the preceding claim applies to this,
and need not be repeated. It is apparent on the face of the
account of Sales, and was, consequently, understood by Mr.
Brydie. --
But it is contended, that this was not a conclusive statement.
It was a conjectural allowance dependant on a subsequent state-
ment. -
This allegation is not supported, and there is no reason to
believe it correct. Had this been the fact, Mr. Brydie would
have required evidence of the actual damage on the final settle-
ment of the account. His settling the account without charging
this item, is proof that he considered the arrangement as having
been definitely made with Holder, and was satisfied with it. If
in this he was deceived, the deposition of Holder ought to have
been taken by the plaintiffs, in order to prove the fact.
The third error, a correction of which has been required, is
an extra charge of commissions and of interest. -
In the articles of copartnership, Miller, Hart & Co. stipulate
to do the business in London on the same terms on which they
had done the business for Alexander Brydie & Co. Conse-
MAY TERM, 1809. - 153
––aºs
Brydie's Executors v. Miller, Hart & Co. et al.
-*-*
quently, they were bound to be content with the same commis-
sions, and to keep an interest account on the same principles.
The bill charges a departure from this stipulation. This
allegation, also, is in express and unequivocal terms denied in
the answer. -
Alexander Brydie was the acting partner, in this country, of
Alexander Brydie & Co., and of M:Clure, Brydie & Co. Con-
sequently, he understood perfectly the commissions charged by
Miller, Hart & Co. to each of these firms. He never complained
of their commissions, but impliedly approved them; first, by
admitting the accounts, and afterwards, by making a final settle-
ment, which acknowledged their correctness. -
The plaintiff does not pretend to show, that the commissions
charged M'Clure, Brydie & Co. vary from those charged Alex-
ander Brydie & Co., but shows, that different commissions have
been charged M*Clure, Brydie & Co. for different cargoes, sold
at different places, and under different circumstances, with all of
which Alexander Brydie was perfectly satisfied. The interest
account is not so clear, and I do not so well understand it. If
the plaintiff can show a positive error in it, I shall permit him
to do so. But the whole weight of proof lies with him.
A fourth error charged against Miller, Hart & Co. is, pre-
miums paid for insurance against fire. But this item is in
express terms allowed by Brydie, and was afterwards admitted
by him in the settlement.
A fifth error is, an allowance of 10s. per cwt., on 400 hogs-
heads of tobacco purchased for Keymer, M*Taggert & Co. at
423 per ewt.
Keymer, MºTaggert & Co. alleged, that their orders had been
disobeyed, and refused to receive this tobacco. Miller, Hart
& Co. made a compromise, and agreed to receive 50s, instead of
60s. per cwt. Alexander Brydie says, he does not think they
were bound to make this concession, but believing they acted
for the best, he acquiesces in it, and will cheerfully bear his
proportion of the loss.
Alexander Brydie might certainly have refused to accede
VoI. I.-U
154 VIRGINIA.
Brydie's Executors v. Miller, Hart & Co. et al.
&
to this compromise, in which case, Miller, Hart & Co. would
have stood in the place of Keymer, M*Taggert & Co., and
must have paid whatever sum that company was liable for. But
although Alexander Brydie might have withheld his assent, he
was not bound to withhold it. He was at liberty to accept or
reject the compromise. With a full knowledge of the subject,
he chose to accept it. Who shall reverse his decision, and say,
that against his will, he shall go on with the contest, and risk
almost the whole cargo, on the liability of Keymer, M*Taggert
& Co., to pay 60s. per hundred for the tobacco P
It is alleged, that this compromise was not actually made ;
but this allegation is not supported by even the semblance of
probability, and if the plaintiffs rely on it, they ought to have
taken the testimony which was in their power, to establish the
fact.
A sixth error, is a credit taken in the books, for £1800, a
variance between the London and Virginia books. This allega-
tion is expressly denied in the answer, and is not proved. I un-
derstand the answer, as accounting for the alleged error of £2000,
in favour of M“Clure.
In objection to the account which was settled, it is alleged, that
M“Clure signed it for himself only, not for his partners. That
Miller and Hart were not bound, and, therefore, Brydie ought
not to be bound. -
Whenever Miller and Hart signified their acquiescence in
this account, it became obligatory on them, even supposing that
their silence did not render it obligatory. But whatever force
might arise from this circumstance, if Miller and Hart had never
signified their acquiescence in the settlement, and Brydie had
alleged this fact, and brought a bill on that account, to have a re-
settlement, it can have no force when Miller and Hart appear to
have approved the settlement, and are not put upon the proof of
that fact, by the allegation that they had not assented to it.
It has been also contended, that Miller, Hart & Co. ought to
have set forth the settled account, if they relied upon it, as a bar
to the re-settlement which is demanded in the bill.
MAY TERM, 1809. 155
Brydie's Executors v. Miller, Hart & Co. et al.
If this bill had been brought for a settlement of accounts, with-
out admitting a former settlement, this observation would be cor-
rect. The defendant ought not to be, and most certainly would
not be, admitted to plead a former settlement in bar, without
showing that former settlement. But this bill admits a former
settlement, which must be in possession of the plaintiffs. It
is therefore not essential, that the defendants should exhibit it,
nor have they ever been required to exhibit it. The original
has been produced and read in Court. That it cannot longer be
produced, is not the fault of either party; each party is, I pre-
sume, possessed of copies. If, on this part of the case, any diffi-
culty should arise, the Court will interfere so far as may be ne-
cessary. -
The errors alleged in the former settlement have been con-
sidered. If there was nothing further in the case, I could not
hesitate to dismiss the bill. But the parties agree that some ac-
counts between them still remain open. Of these, an account is,
of course, to be taken. If, during the pendency of this account,
the plaintiff chooses to inspect the policies in London, he is at
liberty to do so, and if there is any one case, in which Miller,
Hart & Co. have themselves stood insurers, he is at liberty to
bring the circumstances of that case before the Court. He may
also take depositions, to show any imposition on Alexander Bry-
die, and he may show to the commissioner, any positive error in
the interest account, but he is not at liberty to open the settle-
ment on any point agreed to by Alexander Brydie, unless he can
prove fraud or misrepresentation in obtaining that agreement.
156 VIRGINIA.
THE UNITED STATEs v. HILL ET AL.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
An individual is presented by the grand jury, for a particular offence, and a bill
of indictment for the same offence is sent to the grand jury, by the attorney
for the U. S., which they find “a true bill.” At a subsequent term of the
court, the attorney enters a nolle prosegui. It seems : That the indictment
was but an amendment of the presentment, that the presentment was embodied
with the indictment, and perished with it. º
It has been the practice of the courts in this country, to take no notice of present-
ments, on which the prosecuting attorney does not think proper to institute
proceedings, and upon this principle, a motion to quash a presentment after a
molle prosegui entered, will be overruled.
No act of congress confers on the United States’ courts, the right to summon grand
juries, or describes their powers. The laws of congress have invested the courts
of the U. S. with criminal jurisdiction, and since this jurisdiction can only be
exercised through the instrumentality of grand juries, the power to direct them
results by necessary implication. Hence, the powers of grand juries are co-
extensive with, and are limited by, the criminal jurisdiction of the courts of
which they are an appendage. Hence, too, a presentment by a grand jury in
the circuit court of the U. S., of an offence of which that court has no juris-
diction, is coram non judice, and is no legal foundation for any prosecution,
which can only be instituted on the presentment or indictment of a grand jury,
to be carried on in another court, unless that court has no right to direct grand
juries. But the district courts of the U. S. have that power, as completely as
the circuit courts, to the extent of their criminal jurisdiction.
ON the 13th day of December, 1808, the grand jury present-
ed John K. Hill and others, in this court, for a violation of the
embargo laws of the United States, alleged to have been com-
mitted in March 1808, by carrying the schooner Penelope into the
port of St. Bartholomews, beyond the limits of the United States,
although cleared from the portof Tappahannock, in Virginia, for the
port of Savannah, in Georgia. On the following day, the attorney
for the United States sent to the grand jury a bill of indictment,
founded upon the said presentment, which they found “a true
bill.” At the June Term, 1809, the attorney for the United States
entered a nolle prosegui, as it seems, for want of jurisdiction, as
MAY TERM, 1809. 157
—ºr
The United States v. Hill et al.
to the whole class of indictments, founded upon presentments
for violations of the embargo laws, including the indictment
against the defendant Hill. A motion was then made on behalf
of the defendant, Hill, to quash the presentment of the grand
jury, and a cross motion was made by the attorney for the United
States, for an order to certify this presentment to the district
court.—Upon these motions, the chief justice delivered the fol-
lowing opinion.
MARSHALL, C. J.-I shall not quash the presentment for two
reasons. 1st. I am not certain, that the presentment has at this
time any legal existence.
I am much inclined to the opinion, that the two presentments
of the same offence, which were made by the grand jury, the
first on their own motion, which was informal, and the second,
at the instance of the attorney for the United States, which is
precisely the first presentment, corrected in point of form, are
to be considered as one and the same act, and that the second is
only to be considered as an amendment of the first. If this be
eorrect, the presentment was embodied in the indictment and
perished with it. I am, also, much inclined to the opinion, that
the idea of a discontinuance, which was suggested at the bar, is
Correct. -
2dly. The usage of this country has been, to pass over, unno-
ticed, presentments on which the attorney does not think it
proper to institute proceedings. This usage is convenient, be-
cause it avoids the waste of time, which would often be con-
sumed in the inquiry, whether the Court could take jurisdiction
of the offence presented. I am not disposed to disturb it, unless
strong reasons should require my interposition. Without decid-
ing whether this presentment retains any legal force, I shall not
quash it. . - -
A more material question grows out of the motion, for an or-
der to certify this presentment to the district court.
This order is not essential to the verification of the present-
ment. The record, certified by the clerk, would be as authentic
158 VIRGINIA.
The United States v. Hill et al.
as-s-s-s-
as if certified under an order of this Court. The motion, there-
fore, can only be made for the purpose of conveying to the dis-
trict court, the opinion of this Court, that it is the duty of the
judge below, to proceed upon the presentment ordered to be
certified to him. The order can be required for no other pur-
pose, indeed, this is the avowed purpose for which it is asked.
Consequently, I ought not to make the order, unless it should be
my opinion, that the presentment here is a legal foundation for
proceedings in the district court.
In making this inquiry, I shall, for the present, discharge from
my consideration those subsequent events, which appear to me
to make it at least doubtful, whether the presentment is at this
time in such legal force as to communicate validity to proceed-
ings now to be instituted on it, and shall treat the question as if
the presentment had been made during the present term.
The order is required by the attorney for the United States,
for the purpose of facilitating proceedings in the district court,
against certain persons, charged with the violation of the embargo
laws, and to obviate the objections drawn from the 7th amend-
ment to the Constitution, which ordains, “that no person shall
be held to answer for a capital or otherwise infamous crime, un-
less on a presentment or indictment of a grand jury.”
Without meaning to indicate any opinion on the necessity of
a presentment or indictment in this case, I shall inquire whether,
if it be necessary, I can transmit this presentment to the district
court, as being, under the Constitution, a legal commencement of
a prosecution to be carried on in that court.
It has been truly stated, that no paper, purporting to be a pre-
sentment, can, in contemplation of the Constitution and the law,
be a presentment, unless made on oath. That circumstance is
admitted to be essential to its legal efficacy.
The oath of a grand juror is not, as has been supposed, to in-
quire into every offence against the United States which may be
committed within the district, but to inquire into such as may
be given them in charge, or may otherwise come to their know-
ledge, “touching the present service.” Their oath, their power,
MAY TERM, 1809. 159
The United States v. Hill et al.
—-f
and their duty, are limited by the words, “touching the present
service.” We are therefore to inquire what the service is which
they are sworn to perform. -
It has been justly observed, that no act of Congress directs
grand juries, or defines their powers. By what authority, then,
are they summoned, and whence do they derive their powers ?
The answer is, that the laws of the United States have erected
courts which are invested with criminal jurisdiction. This juris-
diction they are bound to exercise, and it can only be exercised
through the instrumentality of grand juries. They are, there-
fore, given by a necessary and indispensable implication. But,
how far is this implication necessary and indispensable? The
answer is obvious. Its necessity is co-extensive with that juris-
diction to which it is essential. Grand juries are accessaries to
the criminal jurisdiction of a court, and they have power to act,
and are bound to act, so far as they can aid that jurisdiction,
Thus far, the power is implied, and is as legitimate as if expressly
given. To suppose the powers of a grand jury, created, not by
express statute, but by the necessity of their aiding the jurisdic-
tion of a court to transcend that jurisdiction, would be to consi-
der grand juries once convened, to be clothed with powers not
conferred by law, but originating with themselves. This has
never been imagined. - -
It follows then, that, in the general, the grand juries which are
summoned to attend the courts of the United States, possess
powers and duties co-extensive with the jurisdiction of the
courts which they attend. Is there any thing which shall take
the present case out of this general principle
It is said, that under the Constitution, the offender in this case
can only be held to answer on a presentment or indictment of a
grand jury, and that by law, the prosecution can be carried on in
the district court alone. Hence is inferred the liability of pro-
ceeding in the district court, on a presentment made in this
Court. -
It will not be denied, that the legislature may enable grand
juries to make presentments in one court, of offences to be prose-
euted in another; nor will it be denied, that if these laws can be
160 VIRGINIA.
The United States v. Hill et al.
executed in no other manner, this power must be implied. But
these admissions do not affect the present case. -
It is not pretended that this power is expressly given. If it
exists, then, it must be implied. It cannot be implied, unless it
be necessary to the execution of the law. It is not necessary to
the execution of the law, unless the prosecution is to be carried
on in a court which has no power to inquire into offences, by a
grand jury. But it is incontestible, that a district court possesses,
in this respect, precisely the same power with a circuit court.
The power, then, of inquiring into offences of which this Court
has no jurisdiction, is no more given by implication than by ex-
press words. It follows, that the presentment in this case, was
not within the oath, or the power of the grand jury, was coram.
mon judice, and is no legal foundation for any prosecution which
can only be instituted on the presentment or indictment of a
grand jury.
If, departing from this course of reasoning, we look for aid to
the usages of other courts, we shall be brought, I think, to the
same conclusion.
In England, whence we derive our grand juries, I believe the
idea has never been suggested, that the power of the grand jury
exceeded the jurisdiction of the court to which it is an append-
age. In Virginia, I believe the -idea would be equally novel.
There is not only no case in either country in which proceedings
have been instituted in one court, on a presentment or indictment,
found in a court having no jurisdiction of the offence, but there
is no case on which proceedings have been instituted in one
court, on a presentment or indictment found in another court.
In Virginia, the county courts and superior courts have, in many
cases, concurrent jurisdiction. In those cases, a grand jury,
either in the superior or county court, may present the offence.
The idea has never been suggested, that a presentment or in-
dictment may be made in one court, and prosecuted in an-
other.(1) -
(1) There is, however, one exception in Virginia, to the universality of the
position taken by the Chief Justice, that the presentment of a grand jury in one
MAY TERM, 1809. 1 6 1
The United States v. Hill et al.
It is well worthy of consideration, whether the words of the
Constitution do not connect the presentment with the subsequent
proceedings, so as to make the whole one entire prosecution.
“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury.” Is it the indictment or presentment, he is to answer? I
do not say that it is. Perhaps it is not. But if it be, how sin-
gular would be the proceedings which should commence in one
court, especially in a court without jurisdiction, and be carried
on in another, without being removed by those means provided
by the law for transferring causes from one court to another?
Motion to quash overruled, and the order to certify the pre-
sentment to the district court, refused.
court, is no legal foundation for a prosecution against the individual elsewhere,
and is an absolute nullity, so far as it exceeds the jurisdiction of the court in which
it is made. In Virginia, the superior courts of law have no original jurisdiction in
cases of felony, but it frequently happens, in the criminal practice of this State,
that an individual is presented by a grand jury in a superior court for a felony,
before he has been tried by an examining court of his county. In such cases, the
law makes it the duty of the judge, in whose court the presentment is made, to
issue his warrant, directed to any sheriff or constable, for apprehending the person
so charged, and commit him to the jail of the county where the presentment
charges the felony to have been committed; and upon the apprehension and com-
mitment of the individual, the jailor is required to notify some justice of the peace
of the fact, whose duty it then becomes to issue his warrant to the sheriff of his
county, directing him to summon an examining court as in ordinary cases. 1 R.
C. ch. 169. § 20. p. 605. Tate's Digest, p. 157. § 25–LEditor.] -
VoI. I.--X
circuit court of the gamited states.
VIRGINIA, MAY TERM, 1s10.
REFORE
HoN, JOHN MARSHALL, Chief Justice of the United States.
STRoDE v. THE STAFFoRD JUSTICEs.
The 22d section of the original judicial act, limiting the period within which
writs of error may be brought to five years after the rendition of the judgment,
or decree complained of, applies only to writs of error in law, and does not
extend to writs of error coram nobis.
In the construction of statutes, one part must be construed by another. In order
to collect the legislative intention, the whole statute must be inspected.
IN May 1795, a judgment was obtained in this Court, in
favour of Rebecca Backhouse, administratrix of John Back-
house, deceased, against Adam Hunter and Abner Vernon, ex-
ecutors of James Hunter, deceased, surviving partner of “Ward
& Hunter,” for $8238 45, to be levied of the goods and chat-
tels of the said James Hunter, deceased, in the hands of the
defendants, to be administered. Before the rendition of this
judgment, Abner Vernon had died ; and in December 1809, the
plaintiff, John Strode, admininistrator of the said Abner Ver-
non, presented his petition to this Court, setting forth the desth
of his intestate, prior to May 1795, and praying a writ of error,
MAY TERM, 1810. I 63
Strode v. The Stafford Justices.
coram nobis, to reverse the said judgment, for the alleged error
in fact. The writ of error was awarded, and the defendant, the
relator in the action, pleaded the statute of limitations in bar.
To this plea, the plaintiff demurred generally, and the defend-
ant joined in demurrer. - - 4
1MARSHALL, C. J.-The sole question in this case is, whether
the limitation of five years, can be pleaded to a writ of error in
fact, and this question depends on the construction of the 22d
section of the original judicial act.(1) - -
That section contains the following clause: “And writs of
error shall not be brought, but within five years after rendering
or passing the decree complained of.”
That this clause, standing unconnected with other provisions,
which necessarily limit its operation, would extend to writs of
error in fact, will not be controverted. But it is intermingled
with other clauses, which essentially influence its construction.
For reasons urged at the bar, which I will not repeat, it is
perfectly clear, that the writ of error given in the 22d section,
is not a writ of error coram mobis, but a writ to be issued from
a superior court, for the purpose of correcting the errors of an
inferior jurisdiction. -
This is admitted by the counsel for the defendant; but he
would obviate the inference to be drawn from it, by contending,
that writs of error for the purpose of correcting errors in fact,
lie from the supreme to the circuit court, and from the circuit
to the district court. In aid of this argument, he states a doubt
expressed by one of the judges of the court of appeals, respect-
ing the power of that court to reverse the judgments of inferior
courts for errors in fact. - -
If, instead of a doubt, the jurisdiction had been averred, that
opinion would have been totally inapplicable to this case, because
the law, by which the court of appeals is constituted, gives them
cognizance of all causes brought before them by writ of error
(1) I Story's Laws U. S., ch. 20. § 22, p. 60, 61. Act of 1789–LEditor.]
164 VIRGINIA.
Strode v. The Stafford Justices.
generally,(2) without specifying the nature of the writ, or re-
stricting their powers to errors in law ; but the judicial act ex-
pressly provides, that “there shall be no reversal in either
court,” “for any error in fact.” Consequently, the act of Con-
gress must be entirely disregarded, before the supreme court
can take cognizance of errors in fact, committed in an inferior
court, in a case brought up by writ of error. -
This positive prohibition of the act, is supposed to be over-
ruled by the exceptions to the clause which limits writs of error.
They are, that “in case the person entitled to such writ of error,
be an infant, feme covert, non compos mentis, or impri-
soned, then within five years as aforesaid, exclusive of the time
of such disability.”
It is contended, that these cases are necessarily cases in which
the error must be an error in fact, and, therefore, the act of
limitations must be construed to extend to writs of error in
fact. -
But the truth of the original proposition cannot be conceded.
Judgments may certainly be rendered against infants, ſemes
coverts, persons non compos mentis, or imprisoned, which may
be erroneous in point of law ; and for these errors, a writ of
error may be sued out, the right to which is not barred by the
act of limitations. There is, then, no necessity for giving these
words a meaning repugnant to the plain terms and intention of
the act. - - -
But it is contended, that the general words: “And writs of
error shall not be brought, but within five years after rendering
the judgment, or decree complained of,” are unrestricted, and
apply to all writs of error whatever, whether such as Congress
then had in contemplation, or such as were at the time, entirely
out of the mind of the legislature.
This would be a manifest departure from the common princi-
ples of construction, and from what appears to be the plain intent
of the act. -
(2) See Tate's Digest, title, Judiciary (Court of Appeals), p. 374,-[Editor.]
MAY TERM, 1810. 165
Strode v. The Stafford Justices.
These words, though general, are not such as to show, that
the term “writ of error,” is used in this instance in a more
extended sense than is affixed to it throughout the section, and
also through the 23d and 24th sections. They are, “and writs
of error,” that is, writs of error which are the subjects of the
law. It is probable, that had a more extended operation been
intended, some terms would have been used indicative of that
intention. Instead of the words, “ and writs of error,” we
should, most probably, have ſound the words, “all writs of
error whatever,” or “all writs of error, whether brought in a
superior court, or in the same court,” or some other terms, in-
dicative of an intention to regulate writs which were not the
objects to which the attention of the legislature was at the time
directed. * f
But it is urged, that one sentence of a law cannot be affected
by the context.
I should as soon have expected the declaration, that one sen-
tence of a will was not to be affected by other parts of the will.
In each, the intention of the maker is to be affected, and, con-
sequently, each instrument must be wholly inspected.
Without reasoning upon this subject, the books abound with
authorities, which seem to be conclusive. In l Inst. 381, Lord
Coke says: “It is the most natural and genuine exposition of a
statute, to construe one part of a statute by another part of the
same statute, for that best expresseth the meaning of the makers.”
He afterwards adds: “And this exposition is ea: visceribus
actus.” - :
The instances which illustrate this axiom, in the construction
of statutes, are numerous. They are to be found in all books
which touch on the subject, and many have occurred in the
Supreme court of the United States.
The statute of England is inapplicable, because it is not con-
nected with other clauses. **
The demurrer is sustained, and the judgment of reversal must
be rendered.
v.
circuit Court of the gamittu states,
VIRGINIA, NOVEMBER TERM, 1810.
BEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
Scr1BA, SCRoPPAL & STURMAN v. DEANEs ET AL., AND
KUNKALL & Co. v. THE SAME DEFENDANTs.
A creditor obtained a judgment against his debtor, on the 15th of November,
1800, with a stay of execution, till the 1st of June, 1801. Another creditor
obtained three judgments, on the 1st of December, 1800, and other creditors
obtained a decree, on the 20th of March, 1801, against the same debtor. The
second creditor, issued f. fa.’s on two of his judgments, on the 13th of March,
1801, which were levied, and a f. fa. was issued on the third and largest judg-
ment on the 1st of April, 1801. The debtor executed a mortgage of his land,
to secure the second creditor, on the 27th of April, 1801, which was recorded
on the 25th of May following; and the officer returned the fi fa’s on the 30th
of April, 1801, with different endorsements, that is, that he had levied two of
them, and the property was released by order of the plaintiff, and on the third,
that “proceedings were stopped by order of the plaintiff.” The second credi-
tor covenanted with the mortgagor, that he would not proceed further on the
judgments, till the property conveyed by the mortgage was regularly disposed
NOVEMBER TERM, 1810. 167
Scriba, &c. v. Deanes et al.
of, and to return the property taken, under the three executions in the officer's
hands.
On suits in chancery brought by the decree creditors, against the judgment cre-
ditors and their mutual debtor, for the purpose of ascertaining the order in
which the several liens of these respective creditors were chargeable upon the
real estate of the debtor, and for a distribution amongst them accordingly, (the
land having been sold by order of court, and the proceeds brought into court
by the commissioners), it was, Held:
1. That the fund in the hands of the commissioner was properly chargeable, in
the first instance, with all the costs incurred by the parties creditors, whether
plaintiffs or defendants. *
2. That a decree in chancery, equally with a judgment at law, creates a lien on
lands.
3. That a judgment, with a stay of eacecution, creates no lien on land, until the
plaintiff has a right to issue execution thereon.
4. That the return of the marshal on the two first executions, determined the
force of the judgments on which they were issued, and destroyed the lien
thereby created on the debtor’s lands.
5. That equity will not connect the deed of mortgage with the judgments, so as
to preserve the original lien.
6. That the language of the return on the third execution, imports, that it had
not been levied, and the implied averment of service in the covenant to suspend
proceedings on the judgments, (the fact, whether it was levied or not being
wholly immaterial in the view of the covenantor,) does not conclude the party.
7. That the covenant to suspend, &c., not being perpetual, did not amount to a
release, nor discharge the lien created by the third judgment on the land.
8. That the third f. fa., having come to the hands of the officer, when he had
property of the debtor in his possession, under former executions, was not
levied, ipso facto, by mere operation of law : there must be an actual, and not
a mere constructive levy. -
9. That the lien on land, created by judgment, depends upon the right of the
plaintiff to sue out an elegit, and it is not essential to the existence of the lien,
that the elegit shall have actually issued. -
10. That the lien of the largest judgment, in favour of the second creditor, not
being lost by the covenant to suspend, and being preserved by the failure to levy
the fi.fa., sued out upon it, that judgment must first be satisfied, the decrees of
the plaintiffs next, the decree creditors, and the other creditors, whether by
judgment, decree, deed of trust, or mortgage, to rank according to their dates
respectively.
THESE suits were brought by the plaintiffs on the chancery
side of this court against James, Thomas, and Francis Deane,
and others, their creditors, for the purpose of enforcing their
J 68 VIRGINIA.
Scriba, &c. v. Deanes et al.
liens on the estate of James and Thomas Deane, created by two
several decrees of the court of chancery of the state, pronounced
in their favour, respectively, on the 20th of March, 1801. The
plaintiffs prayed that the other creditors of the Deanes, defend-
ants, might be compelled to make a discovery of their several
liens, and claimed a priority over them all. The material facts
in these causes were as follows: On the 15th of November, 1800,
a judgment was rendered in the county court of Henrico in
favour of John Allan against the debtor defendants, with a stay
of execution till the 1st of June, 1801. On the 1st of December,
1800, Henry S. Shore and Thomas Reeves, surviving partners
of William Anderson & Co., obtained three several judgments
on the law side of this court against the same defendants; and on
the 5th of May, 1801, they obtained a fourth judgment: and on
the 20th of March, 1801, the plaintiffs, Scriba, Scroppal &
Sturman, and Kunkall & Co., each obtained a decree in the state
court of chancery against two of the debtor defendants, James and
Thomas Deane. There were various other creditors by judgments,
mortgages, and trust deeds of a later date, claiming liens on the
real estate of the Deanes, all of whom were made defendants in
the present suits. Shore sued out writs of fi, fa, on his two
smaller judgments on the 13th of March, 1801, and on the
third judgment another writ of fi, fa, on the 1st of April, 1801.
After these writs were in the hands of the officer, James and
Thomas Deane, by deed bearing date the 27th of April, and re-
corded the 25th of May, 1 SO1, mortgaged their real estate for the
purpose of securing all the debts due by judgment to William
Anderson & Co. To that deed Henry S. Shore, as agent for,
and surviving partner of, William Anderson & Co. appended a
memorandum by which he covenanted, “that no farther pro-
ceeding shall be had at law on any of the judgments which Wil-
liam Anderson & Co. have, or may have, against the said Deanes,
until all the property conveyed by them in trust shall be regu-
larly disposed of, and then only in case of a balance unsatisfied.
And, moreover, to return all the property lately taken by the
marshal on account of executions on three of the debts men-
NOVEMBER TERM, 1810. 169:
Scriba, &c. v. Deanes et al.
tioned in this deed.” On the 3d of April, 1801, the marshal
returned all three of the writs of f. fa., on the two of which
that were first issued, he endorsed,—“Executed on sundry
property of the defendants, which hath been released by direc-
tion of Henry S. Shore, agent and co-partner of the above
concern, he having compromised with the said defendants;”
and on the third execution, issued on the 1st of April, 1801,
was the following endorsement-“Proceedings on this execu-
tion stopped by direction of Henry S. Shore, agent and co-part-
ner of the above concern, by reason of the compromise having
taken place between the said Shore and the defendants.” The
lands of the three Deanes having been sold under a previous
order of this Court, and the proceeds of sale having been brought
into court by the commissioner, the question now submitted to
the court respected the order in which the various creditors were
entitled to rank in charging this fund. -
MARSHALL, C. J., delivered the following opinion —
These suits are brought for the purpose of distributing the
estate of the defendants, James, Thomas, and Francis Deane,
among their creditors; some of whom have liens on the estate
by judgment, and others by mortgage or deeds of trust.
As the parties, creditors, are necessarily brought before the
court for the purpose of ascertaining their respective claims, it
is deemed just that the fund should be charged, in the first
instance, with all the costs incurred by them in this suit.
Although some of these liens are upon the estate of all three
of the Deanes, some on the estate of James and Thomas Deane,
and others on the estate of James and Francis Deane, the Court
is not required to make, at least for the present, those particular
discriminations which will ultimately be necessary. For the
present, the fund has been considered as a joint fund liable to
the claims of all the creditors, and the Court is required only
to settle their priority.
John Allan, William Anderson & Co.; and the plaintiffs;
Vol. I.-Y . º • * - * *
170 - VIRGINIA.
Scriba, &c. v. Deanes et al.
Scriba, Scroppal & Sturman, and Kunkall & Co., each claim
the preference. A preference is also claimed by the estate of
Thornas Gilliat. -
John Allan obtained a judgment in the county court of
Henrico, on the 15th of November, 1800, with a stay of execu-
tion till the 1st June, 1801.
William Anderson & Co. obtained three judgments in this
Court, on the 1st of December, 1800.
The plaintiffs, Kunkall & Co., and Scriba, Scroppal & Stur-
man, each obtained a decree in the high court of chancery, on
the 20th of March, 1801. r
On the former argument it was decided, that in Virginia, a
decree in chancery is equally a lien on lands with a judgment
at law. The judgments and decrees, therefore, class together.
The judgment in favour of John Allan having been first
rendered, would constitute the first lien, had there been no stay
of execution. The rank of that judgment depends on the
question, whether the lien takes place at its rendition or at the
time when execution may issue on it.
It must be admitted, that a judgment at common law did not
bind lands, and that there has been no statute which, in direct
terms, creates the lien. But courts have so construed the
statute which gives the elegit as to infer a lien from the power
to take the lands in execution. The lien, then, grows out of the
right to issue the elegit, and is, consequently, inseparably con-
nected with that right. It would seem to follow, irresistibly,
from these premises, that Allan’s judgment constituted no lien
on the lands until it was in his power to issue execution thereon.
This was on the 1st of June, 1801.
The judgments of William Anderson & Co. come next to be
considered. Three of these were rendered on the 1st of Decem-
ber, 1800, and the fourth, on the 5th of May, 1801. On all
these judgments executions were issued; but as the returns on
these executions were different, they must be separately consi-
dered. .
On two executions, the return of the officer is, that they were
NOVEMBER TERM, 1810. 171
Scriba, &c. v. Deanes et al.
executed and the property released by order of the plaintiff, in
consequence of a compromise between the parties.
That this return determined the legal force of these judg-
ments, is admitted. Of course they no longer constitute a lien
at law on the lands of the debtor. But it is contended, that
deeds executed on the lands bound by these judgments being
executed for the same debt while the judgments were in force,
and being the consideration for which the judgments were
released, may be connected with these judgments in equity so
as to continue the original lien.
The real object of this suit is to adjust legal priorities, and
this Court, if not directed by express authorities, would not be
inclined to interfere with those priorities, in any other case than
in one in which a preference had been improperly obtained,
and in which that impropriety had been made the particular
subject of inquiry. At law, it is clear, that no lien can com-
mence at a time anterior to its own existence. The common
case of mortgages not recorded and renewed, appears to be
directly in point. It has never been conjectured, that a subse-
quent mortgage, for the same property, could be connected with
a prior mortgage not recorded, or recorded and reconveyed, in
such manner as to defeat creditors or purchasers without notice,
claiming under a deed made previous to the existing con-
veyance. - -
The cases of Eppes v. Randolph, 2 Call, 125, and Tinsley
v. Anderson, 3 Call, 329, are, however, cited as authorities to
prove, that this may be done in equity.
Neither of those cases connect a prior with a subsequent lien.
They keep alive, in equity, a lien which was extinguished, at
law, in favour of a person who is invested with all the equity of
the original holder of the judgment. -
Those cases, in my opinion, go a great way. I shall respect
them in a case precisely similar, but shall not extend their
application. The judges have not stated the grounds of those
decisions, but they were pronounced in favour of sureties who
had discharged judgments against their principals and them
172 VIRGINIA.
Scriba, &c. v. Deanes et al.
selves, and I shall not consider them as extending to cases of a
different description.
Under these two judgments, then, William Anderson & Co.
can claim nothing. -
On the executions issued on the remaining two judgments,
the return on each is, that proceedings on the execution were
stopped by order of the plaintiffs in consequence of a compro-
mise between the plaintiffs and the defendant.
It has been contended, that the words of this return are equi-
valent to an express declaration, that the execution was levied,
because proceedings, it is said, could not be stopped, unless they
had commenced. - •
This criticism appears to the Court to be overstrained. The
person who is stopped from proceeding, might very naturally
say, “the proceedings are stopped.” Where the attention is not
particularly directed to the construction which may be put upon
words not cautiously guarded, human language is susceptible of
different constructions. But these expressions ought always to
be received in the sense in which all the circumstances attending
them prove that they were used.
The execution of process is a positive fact, which it is the duty
and the practice of the officer to return expressly, and never to
leave to implication, The circumstance of his not having re-
turned it, is full evidence that he did not consider the execution
as levied. -
This is, in this case, the more apparent from the returns made
on the other executions in the same case, by the same officer.
Of three executions in his hands at the same time, he has re-
turned on two, that they were executed, and that property was
released ; on the third, that proceedings were stopped. Why
has he not returned, that the third was executed, as well as the
second, if in fact it was executed 2 The fourth, unquestionably,
was not executed. It was placed in the hands of the officer,
after the compromise, and after the property was released. The
return on the fourth execution is substantially in the words of
the return on the third. Why, if the expression, “proceedings
NOVEMBER TERM, 1810. 173
Scriba, &c. v. Deames et al.
are stopped,” mean on the third execution that it was levied,
are they used on the fourth, which most certainly was not
levied ?
Upon the return alone, I should feel no difficulty in deciding,
that the execution did not appear to be levied, but the deed of
compromise is introduced for the purpose of showing, that the
execution was levied in fact.
The fact, whether all three executions, or only two of them
were levied, was so totally unimportant to the parties in the view
taken at that time, of the affair, as to render it improbable, that
any inquiry was made respecting it. Mr. Shore knew that he
had placed three executions in the hands of the officer. Mr.
Deane knew that his property was executed at the suit of Mr.
Shore. A compromise is entered into, by which the property
is discharged from execution. Mr. Shore trusts to a new lien
given him on lands, and agrees to suspend proceedings on the
judgments. In the view of the parties, it is perfectly immate-
rial, whether the executions be all levied or not, and, conse-
quently, the phrase used in the deed, does not include the
party. The real fact may be proved, and, in my opinion, the
return of the marshal is much more satisfactory evidence of a
fact within his own particular knowledge, than the loose un-
guarded expression of the party, respecting a fact not within his
knowledge, and which he then deemed entirely unimportant.
As this covenant not to resort to the judgment is not perpetual,
it does not amount to a release, and, consequently, does not dis-
charge the lien created by the judgment.
But it is alleged that the execution, having come to the hands
of the officer, while property belonging to the debtor was in his
possession, under a former execution, was levied without any
act of the officer by the mere operation of law. -
The inconveniences of this principle are so obvious, that it
would be useless to enumerate them. It would require a posi-
tive statute, or express decisions, to induce this Court to adopt it.
Neither are adduced.
The case of a detainer under a capias, is not in point. The
} 74 VIRGINIA.
Scriba, &c. v. Deanes et al.
sole object of that process is, the body, and when the body is
in custody, the full effect of the execution is obtained. Nothing
further is to be done by the officer. On a fieri facias it is other-
wise. :
It is next contended, that the lien created by a judgment does
not take place, until a writ of elegit shall have actually issued on
that judgment. This principle, in such direct opposition to the
doctrine of the books, and to the reason of the principle on which
the lien depends, is supported by an expression used in the
opinion of the court of appeals, in the case of Eppes v. Ran-
dolph.
This particular point was not stirred at the bar, and was not
considered as belonging to the cause. To consider the judge,(1)
in such a case, as laying down a new and important principle,
contrary to uniform decisions, on vague and general expressions,
would be doing injustice both to the judge and to the subject. It
would require expressions, which could not be deemed careless,
but which were obviously considered, and intended to have the
effect now given them.
But the case itself shows, that the judge did not mean to lay
down the rule which is ascribed to him. He says, that previous
to the act of 1772, the judgment of a county court could not
bind lands lying out of the county, because an elegit could not
run into another county. But when this law was changed, the
lien was extended. His position would have been differently
stated, if he intended to lay down the principle contended for.
The judgment could not have bound the lands. It would have
been the elegit itself. s
The expression, too, on the very point, shows his opinion.
“We are then to inquire,” says the judge, “what he ought to
do, in order to preserve the lien.” These words plainly imply,
that there was a lien to be preserved. Having discussed Hans-
berry’s judgment, he says, “the other judgments are liable to
the same objections, of not having kept their liens alive,” by the
(1) Judge Pendleton.
NOVEMBER TERM, 1810. 175
Scriba, &c. v. Deanes et al.
means before stated. He certainly did not mean to say, they
had no lien to keep alive.
If the opinion was, that it was not the judgment, but the
actual issuing of the elegit which commenced the lien, that opi-
nion would at once have terminated the cause, for the convey-
ances were prior to any elegit. -
The principle laid down afterwards, by the same court, in the
case of Tinsley v. Anderson, proves, that the construction here
given to the case of Eppes v. Randolph is correct. In that case,
the court admitted the lien created by judgments on which exe-
cutions, other than an elegit, had issued.
NoTE.—The following extract from the interlocutory decree
rendered in these causes, presents, in a condensed form, the va-
rious interesting points decided by the Chief Justice, in the above
opinion. “The Court being of opinion, that as the judgments,
decrees, and deeds of trust and mortgages, are not chargeable
upon the whole fund, some of them being against all, others
against two of the defendants, Deanes only, and the deed of
trust to John Henry, from Thomas Deane only, that the several
creditors are entitled to rank upon such proportions of the fund,
as belonged to the persons against whom the judgments or de-
crees were pronounced, when the lien is claimed thereby, and
against such of the defendants Deanes, where it is claimed under
deeds of trust, or mortgage, as executed such deed : And being
also, of opinion, that the several plaintiffs and defendants, ex-
cept the defendants Deanes, ought to be reimbursed all costs
expended by them respectively, in these suits, out of monies
now in the hands of the said commissioner, who is directed to
pay the same, doth adjudge, order, and decree, that Charles
Copland, Esq., who, with his consent, is appointed a commis-
sioner for that purpose, do report the amounts to which the
parties respectively are entitled out of the fund, according to the
foregoing opinion, giving Henry S. Shore, and Thomas Reeves,
surviving partners of William Anderson & Co., priority on their
largest judgment obtained in this Court, against the three de-
176 VIRGINIA. Y
Scriba, &c. v. Deanes et al.
fendants Deanes, on the 1st day of December, 1800 : and the
plaintiffs in these suits, to stand next in priority, Allan’s judg-
ment being postponed, to the incumbrances by deed, prior to
the 1st of June, 1801, and the creditors secured by the deeds
to take priority according to their respective dates, &c.”
t
Çirtutit Cottrf of tige Jºſmitti'ſ 54tates,
VIRGINIA, MAY TERM, 1811.
BEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
WILLIAM DIxoM ET AL. v. THE UNITED STATES.
The assignment of breaches in an action upon an embargo bond, is a part, and
a very important part, of the declaration: and upon demurrer to the declaration,
the plaintiffs’ attorney will not be permitted to strike out the assignment of
breaches, on the ground that the declaration is good without it. Such a course
would not be tolerated in any court.
A variance between the declaration and bond, is an erroneous description of the
instrument referred to, so that it does not appear to be the same when produced
in evidence, either on oyer, or at the trial.
A bond made payable to “The United States of America,” would, it seems, be
binding at common law, for “The United States of America” is a corporation,
endowed with the capacity to sue, and be sued, to convey and receive pro-
perty.
The rule, that all contracts made in restraint of trade" are void at common law,
is founded upon the principle, that such contracts contravene the policy of the
law; and, it seems, that this rule would not vitiate a contract in restraint of
trade, entered into at a time when it was the policy of the law to impose re-
strictions upon commerce : consequently, that an embargo bond, made while
the embargo laws were in force, would be binding as a common law bond.
Vol. I.-Z
I 78’ VIRGINIA.
William Dixon et al. v. The United States.
An embargo bond made payable to the United States, is good, though the act
directed that the master, &c., should give bond to the collector of the district
from which the vessel was bound to depart, the proper construction of that act
requiring, that the bond should be taken by the collector, but made payable to
, the United States.
A clause was inserted in an embargo bond, not authorised by the statute, and a
condition was omitted, which the statute directed to be inserted. It seems,
1. That a statutory bond that contains more than the statute requires, is not
vitiated by the surplus matter, but the court will reject the surplusage, as a
mere nullity, and construe the bond, as if such surplus matter were not con-
tained in it. 2. That a statutory bond is vitiated by the omission of a material
condition required by the statute, viz.: “ dangers of the seas eaccepted.” [See
these two last positions, further examined, in the United States v. ————,
infra, and reaffirmed; see also, note (5) to the same case.]
WRIT of error from the district court of Norfolk.
The United States brought an action of debt in that court, on
an embargo bond, executed by the plaintiff in error, and others,
which bond was in the words and figures following, to wit:
“Know all men by these presents, that we, John Lewis, master
of the ship, called the ‘Adams,’ of Boston, burthen 189 tons,
Zicensed for the coasting trade, and William Dixon of Ports-
mouth, &c., are held and firmly bound, unto the United States
of America, in the just and full sum of $23,900, to which pay-
ment well and truly to be made, &c.
“Whereas the following goods, wares and merchandise, that is
to say, 10,000 staves, &c., as per manifest now delivered to the
collector of customs for the district of Norfolk and Portsmouth,
are intended to be transported in the said vessel, called the
Adams, to the ports of Boston and Portland, in the state of
: now the condition of the above obligation is
such, that if the said vessel shall not proceed to any foreign
port or place, and the cargo aforesaid shall be relanded in some
port of the United States, then the aforesaid obligation shall be
void, otherwise to remain in full force.” In the assignment of
breaches, the plaintiffs averred that the condition of the bond
had been broken in this, viz: that the cargo of the said vessel,
“which was a vessel duly registered according to the laws of
MAY TERM, 1811. 179
William Dixon et al. v. The United States.
the United States,” had not been relanded in any port of the
United States. The defendant craved oyer of the bond, and
demurred, and the plaintiffs joined in demurrer. The district
court overruled the demurrer, and gave judgment for the plain-
tiffs, and the defendant obtained a writ of error to this court.(1)
MARSHALL, C. J.-This cause comes on upon a demurrer to
a declaration, assigning breaches of the condition of a bond of
which oyer had been given.
Previous to an investigation of the points supposed to arise, it
becomes necessary to decide how much of the writing certified
by the clerk of the district court is to be considered as essen-
tially the record now before this Court.
(1) It is essential to the clear comprehension and application of the reasoning of
the Chief Justice, in the following opinion, that the following sections of the ori-
ginal and supplementary embargo acts should be inserted entire. The second
section of the original act, passed on the 22d of December, 1807, declares:-
“That during the continuance of this act no registered or sea letter vessel,
having on board goods, wares and merchandise, shall be allowed to depart from
one port of the United States to any other within the same, unless the master,
owner, consignee or factor of such vessel shall first give bond, with one or more
sureties, to the collector of the district from which she is bound to depart, in a
sum of double the value of the vessel and cargo, that the said goods, wares or
merchandise shall be relanded in some port of the United States, dangers ºf the
seas eaccepted ; which bond, and also a certificate from the collector where the
same may be relanded, shall, by the collector respectively, be transmitted to the
secretary of the treasury. All armed vessels, possessing public commissions from
any foreign power, are not to be considered as liable to the embargo laid by this
act.”—Story’s Laws U. S., vol. ii. p. 1071.
The first section of the supplementary embargo act, passed on the 9th of Janu-
ary, 1808, declares:—
“That during the continuance of the act to which this act is a supplement, no
vessel licensed for the coasting trade shall be allowed to depart from any port of
the United States, or shall receive a clearance, until the owner, consignee, 63 en?
or factor shall, with the master, give bond, with one or more sureties, to the
United States, in a sum double the value of the vessel and cargo, that the vessel
shall not proceed to any foreign port or place, and that the cargo shall "e re-
Janded in some port of the United States.”—Story's Jaws U. S., vol. ii. p. 107".
—[Editor.]
18O VIRGINIA.
William Dixon et al. v. The United States.
By the attorney of the United States it has been contended,
that he may strike out the assignment of breaches, and support
his judgment upon the declaration, without that assignment.
Consequently, that the case is to be considered as if no assign-
ment of breaches was to be found in the record.
If the demurrer should not be understood to confess a breach
of the condition not shown by the declaration, it would follow
that, strike out the assignment of breaches, and there is an end
of the case. If the demurrer, would be construed to confess a
breach of the condition, still the assignment of breaches is a
part of the declaration. It is an amendment of the declara-
tion, and has the same effect, as if originally inserted in it.
Can it be supposed that, where a part of the declaration dis-
closes a fact which is cause of demurrer, the plaintiff, because
he can support an action without such statement, may strike it
out, and yet hold the defendant to his demurrer P This would
not be tolerated in any court. -
The assignment of breaches, therefore, is certainly a part, and
a very essential part, of this record.
It is alleged by the plaintiffs in error, that there is a variance
between the bond declared on, and that exhibited on oyer, which
is fatal, and of which they may avail themselves on demurrer.
That the law is as stated, I readily admit; but the fact of vari-
ance cannot be conceded. s
I understand a variance to be an erroneous description of the
instrument referred to, so that it does not appear to be the same
when produced in evidence, either on oyer or at the trial.
In this case, the bond represents the vessel as a licensed vessel,
and the declaration avers her to have been, in fact, a registered
vessel. This averment in the declaration, however, is not in
that part which professes to describe the bond. It is an extrinsic
fact, which exhibits this case of a registered vessel, which has
given a bond, stating her to be a licensed vessel. The question
appears to be, not whether the bond be erroneously described,
but how far such a bond conforms to the statute, and is binding
on the obligors 2
MAY TERM, 1811. 181
William Dixon et al ‘U. The United States.
It is contended, on the part of the plaintiffs in error, that the
bond is void. -
It is void, they say, at common law, because the United
States of America, not being a natural but an artificial being, is
incapable, at common law, of becoming a party to a contract.
The United States of America will be admitted to be a corpo-
ration. But it is incidental to a corporation to sue and to be
sued, to convey and to take property. Proper organs for con-
veying must certainly be provided before this power can be
executed ; but if it be incidental to this ideal being to receive,
then a conveyance to it, or an obligation to it by its proper
name, would be valid, unless there be no person to whom it can
be delivered. A claim to the obligation, by the officer author-
ised by law to assert that claim, would seem to be sufficient
evidence of assent to the contract, and if there be any person
appointed to transact the particular business, a delivery to him
would be a good delivery. - ‘.
The instances given to illustrate the position taken by the
plaintiffs in error, are those of a corporation which has acted,
not by its corporate name, or of a corporation that has expired,
neither of which is supposed to be the fact in this case. A bond
given to the people of the United States would, undoubtedly,
be void at common law, and perhaps a bank whose charter had
expired might no longer be capable of sustaining an action; but
“The United States of America” is the true name of that grand
corporation which the American people have formed, and the
charter will, I trust, long remain in full force and vigour.
The bond, it is said, is also void at common law, because it is
made in restraint of trade, in restraint of common right.
Had there been no act of congress prohibiting foreign trade,
there would have been much force in this objection. But the
rule relied on is founded on the principle, that the obligation is
hostile to the policy of the law, that it surrenders legal rights,
the exercise of which are conducive to the general interest. If
the case be not within this principle, it is not within the rule to
which the principle has given existence. If, at the time, the
182 VIRGINIA.
William Dixon et al. v. The United States.
policy of the law restrained trade, a bond in restraint of trade
would not seem to be void, unless it extended so far as to con-
travene the spirit and intention of the law.
But whatever may be the fate of the objections made to this
instrument, as one resting on the common law, it is contended,
that it does not conform to the statute, and, therefore, that it is
not supported by it :
1st. Because it is made payable to the United States, and not
to the collector.
The words of the act under which the bond is taken, requires,
that the bond shall be given to the collector of the district from
which she is bound to depart.(2) f
It has been argued with considerable force, that the terms
used, according to their natural meaning, import that the bond
shall be payable to the collector; and this construction is the
stronger because, in subsequent statutes on the same subject, the
same terms are obviously used in the sense which the plain-
tiffs in error affix to them in this act.
That this argument is correct in the fact it states, is admitted;
but although the natural meaning of the words “give bond to
the collector,” be, that the bond should be made payable to the
collector, yet it is not their necessary meaning ; and if, upon a
consideration of the whole subject, it be reasonable to suppose,
that the legislature used them in a different sense, they ought
to be construed according to that sense. The doctrine, that
penal laws are to be construed strictly, does not oppose a liberal
construction of this part of the act; for take it the one way or
the other, and it does not render the law more or less penal.
The words ought to be construed as they would have been con-
strued before the execution of a bond. - -
The act itself furnishes motives for the opinion, that the legis-
lature intended the bond to be taken by the collector, but to be
made payable to the United States.
There is no clause in the act appropriating this penalty to the
(2) Original Embargo Act of December 22, 1807, § 2. See ante, note (1)–
[Editor.]
MAY TERM, 1811. 183
William Dixon et al. v. The United States.
United States. Consequently, if made payable to the collector,
it would be for his sole benefit. It being a penalty inflicted for
a breach of the laws of the United States, there can be no rea-
son for supposing that it would be bestowed entirely on the
collector.
The act provides, that the bond thus taken shall be transmit-
ted to the secretary of the treasury. Why transmit it to the
secretary, if it enured to the use of the collector only 2
The additional act, however, is deemed conclusive on this
point. That act declares, that in every case where a bond hath
been given to the United States, under the act laying an embargo,
a suit shall be instituted within four months, if a certificate of
relanding the cargo be not produced. (3) Now, no bond is to be
taken under the act laying an embargo, but those which are of
the same description with that on which this suit is instituted.
Consequently, the legislature contemplated this as a bond which
was to be given to the United States, but delivered to the col-
lector. Had this third section of the additional act been inserted
in the original embargo act, the doubt would probably never
have been suggested. It is not to be denied that, with respect
to this bond, the case is to be considered as if the two acts had
formed one act.
In the case decided before Judge Washington,(4) in Pennsyl-
vania, the bond was taken to the United States; and I recollect
one case decided in the supreme court, on a bond taken under
the same law, in the same manner.(5) In the case in the Supreme
court, this objection was not made. If it was made before Judge
Washington, it was overruled.
2. But if the bond be admitted to pursue the statute, in being
made payable to the United States, the condition varies essen-
tially from it.
(3) See additional Embargo Act of March 12th, 1808, § 3. 2 Story's Laws
of U. S., 1080, § 3.−[Editor.]
(4) United States v. Hall, 2 Wash. Cir. Court Rep. 366–(Editor.]
(5) The United States v. Hall et al., 6 Cranch, 171–(Editor.]
| 84 VIRGINIA.
William Dixon et al. v. The United States.
A clause is inserted in the condition, not warranted by law,
and an exception is made by the law which is not inserted in the
condition.(6) The bond, therefore, does not pursue the statute.
The question is, whether the variance be such as to avoid the
bond as a statutory obligation?
That the member of the condition not required by the statute,
cannot be permitted to prejudice the obligors, is admitted by the
attorney for the United States.(7) But he contends, that it
cannot affect so much of the condition as pursues the statute.
The plaintiffs in error insist, that it vitiates the whole bond,
because it makes the instrument a different one from that which
the collector was authorised to demand. -
The cases adduced by neither party, appear to me to decide
the question, nor have I been able to find one that does. If a
statute render a bond void, which is taken for a particular object,
and one be taken with a condition in part, for this illegal object,
and in part for other objects not illegal, it is clear law, that the
illegal part vitiates the whole instrument. It is also believed,
that if a bond be given at common law, where both the obligor
and obligee are free agents, acting for themselves on an equal
footing, and a part of the condition be void, but there is no
statute annulling the bond on account of that condition, the
instrument is valid as to so much as is lawful.
(6) It will be perceived, that throughout this opinion, the bond on which the
suit was brought, is treated by the Chief Justice as a bond taken under the 2d
section of the original act, and not under the 1st section of the supplementary
act; [see these sections quoted, ante, p. 179;] although, in point of fact, the con-
dition of the bond conformed more nearly to the latter than to the former section.
It is so treated, it is presumed, because the declaration having averred, that the
vessel was a registered vessel, the demurrer to the declaration must be understood
as admitting that she was truly described in the declaration. The condition in-
sorted in the bond, not required by the original act was, that the vessel should
not proceed to any foreign port or place, and the omitted condition was, “dan-
gers of the seas eaccepted.”—[Editor.]
(7) The United States v. Hipkin, 2 Hall’s Law Journal, 80, decided in the
District Court at Norfolk; the same concession was made by the district attorney.
—[Editor.]
MAY TERM, 1811. 185
William Dixon et al. v. The United States.
But the case of a bond, taken under a statute by an officer
specially empowered to take it, and containing additional condi-
tions not warranted by that statute, differs essentially from either.
of these cases. The general policy of the law must require
that the statute should be pursued, and the nature of the case
requires, that the power should be executed conformably to the
act creating it. If the form of the bond and condition were
prescribed, there could be no doubt of the necessity of pursuing
that form strictly and literally. But the form of the condition
is not prescribed, and it must be sufficient, that the bond con-
form substantially to the statute. But may the statute be ex-
ceeded ?
It would certainly be mischievous, to allow officers to insert
in the bonds they are empowered to require, conditions not war-
ranted by law. Although courts and lawyers may know that
such conditions have no effect, obligors may not know it, and
this abuse of official power may very materially affect the in .
terest of individuals, who may regulate their conduct on the
opinion, that they are bound to the full extent of the instrument
they have executed. That, in this particular case, the condition.
inserted may not be in hostility to the general views of the legis-
lature, cannot materially vary the question, for it is not war-
ranted by the statute; and if the officer be at liberty, under
the colour of office, to intróduce such conditions as his own
judgment may approve, then his judgment, and not the statute,
becomes the director of his conduct. Yet it is going far to say,
that, for the insertion of even a material condition, not warranted
by law, not only the unauthorised condition, but the bond, in
other respects lawful, becomes absolutely void.
This question, if considered in a general point of view, is, cer-
tainly, not without its difficulties. But there is a particular aspect
belonging to the case itself which ought not to be entirely over-
looked. It is said, that if this bond be void under the statute, it is
good at common law. That is, that if the statute had directed
no bond, still judgment might be obtained on this obligation, as
on a voluntary contract by which the obligors bind themselves.
Vol. I.-2 A
186 VIRGINIA.
William Dixon et al. v. The United States.
not to do an act which the policy of the law prohibits. If this
argument be correct, then these obligors are liable at common
law, under this bond, for the breach of that part of the condition
which is now under consideration. The third section of the
first supplemental act (8) subjects the vessel and cargo to for-
feiture, in the very case which this condition contemplates; and
on a failure to seize them, renders the owner or owners, agent,
freighter, or factor, liable for the double value. This forfeiture
is not secured by bond. If then, for the fact of going to a
foreign port, the obligors are liable at common law under this
bond, and are also liable under the statute, this circumstance
seems to strengthen very much the reasons for requiring, that
bonds taken under colour of office should contain no condition
not warranted by law.
This condition is exceptionable in other respects. It omits
the words, “dangers of the seas excepted.”(9)
The attorney for the United States admits, that if these words
be material, the omission is fatal. I should have been astonished
had he not admitted it. But he contends that they are imma-
terial, because the law implies the exception.
It is not to be doubted, that the law does imply, as an excep-
tion, any inevitable event which renders the performance of the
condition impossible. This has been solemnly decided in the
supreme court, in an embargo case.(10) But the plaintiffs in
error have shown that the term “dangers of the seas,” has a
broader meaning than would be allowed to it if limited to those
inevitable events which, being unmixed with human negligence,
are ascribed to Providence. In construing this act, which is
emphatically a penal law, since it punishes with extreme
severity, transactions, which, independent of the statute, would
be entirely innocent, those maxims which time has rendered
venerable, and whose utility experience has confirmed, must be
(8) 2 Story’s Laws U. S., 1072, § 3.−[Editor.]
(9) Original Act of December 22, 1807, § 2, above recited.—[Editor.]
(10) The United States v. Hall et al., cited supra-[Editor.]
MAY TERM, 1811. 187
William Dixon et al. v. The United states.
totally disregarded by the court, which would narrow the mean-
ing of words in order to create the forfeiture. s
If, then, the case rested entirely on the original act, I should
without hesitation have pronounced the opinion, that these words
were material, and that the omission was fatal. But the third
section of the additional act, gives a legislative construction to the
words “dangers of the sea” in the original act, which, with re-
spect to bonds taken after the 12th of March, is to be taken into
consideration. This law enacts, that if a certificate of relanding
be not produced within four months, bonds taken under any of
the embargo acts shall be put in suit, “and judgment shall be
rendered against the defendants, unless proof be produced of such
relanding, or of loss by sea, or other unavoidable accident.”
The word “other” certainly goes far to prove the sense of
the legislature to be, that the loss by sea, to excuse the non-
performance of the condition of the bond, must be an unavoida-
ble accident. But is a loss produced by unavoidable accident,
in the sense of this law, synonymous with a loss produced by the
act of God? This is not entirely clear. The object of the law
is, not so much to secure the relanding of the goods in the United
States, as to prevent their transportation to a foreign port. The
relanding is a mean to secure this ultimate point, and with a view
to it the law is framed. The words “unavoidable accident” may be
construed, any accident which renders a breach of the condition
inevitable, by rendering the relanding of the goods impossible,
and which renders it also impossible to convey the goods to for-
eign ports. The word “unavoidable” is not attached to “loss by
sea.” It would seem, then, as if loss by sea would excuse the
failure to reland, since relanding would be impossible, although,
in bringing about that loss, something was to be ascribed to hu-
man negligence. h
If this be the correct construction of the act, that part of the
condition which is required by law, and which is omitted, does
not become entirely unimportant.
Should a different construction be put on this section, it must
yet be admitted to be a question of uncertain solution until the
18S VIRGINIA.
e-
William Dixon et al. v. The United States.
opinion of a court in the last resort shall be taken on it; and can
an officer be permitted to vary the condition of a bond prescribed
by law, in a point, the importance of which is so very doubtful?
I do not rest on the circumstance that this act declares that
judgment shall be rendered against the defendants unless loss be
proved, and does not say that judgment shall be rendered for
them, if such loss be proved, because I believe no court could
hesitate in supplying those words. w
There is still another part of this bond, which, in my judgment,
deserves consideration. -
The vessel is averred in the declaration to have been a regis-
tered vessel, and the Court must understand this to be the fact.
If a licensed vessel, that part of the condition which stipulates
that the vessel shall not proceed to any foreign port or place,
conforms to the statute. It is, consequently, a material part of
the condition which binds the obligors, unless they could be
permitted to contradict their bond, and could be certain to find
evidence to support their plea. These are difficulties to which
the collector has no right, under the statute, to expose them. The
obligors could escape the effect of this argument, only by main-
taining that the bond is void as a bond given by a coasting vessel,
because it does not appear to have been executed by the owner
as well as the master. But the owner and master may be the
same person. One court has already decided that this objection
would not be valid, and I am not confident that other courts
might not affirm the decision. If so, the condition which is in-
troduced without the authority of law, is a material one.
But if these points could be decided against the defendants,
it is, in my opinion, not for an officer taking a bond under a
statute to exclude a condition prescribed by law, because, in his
opinion, its insertion is useless. It is a point on which the judg-
ment of the officer is not to be exercised; and whether right or
wrong, the effect will be the same. He is a ministerial officer,
whose business it is to pursue the statute, and if he fails to do
so, the statute will not sanction his act. Although the operation
of the bond should be the same, whether the condition pre-
MAY TERM, isli. 189
William Dixon et al. v. The United States.
scribed by law be inserted or not, the law considers that condi-
tion as material, or it would not have been prescribed.
The record, then, as it appers in this Court, exhibits a bond
not demandable under the statute from a registered vessel, which
this is admitted to be, and a suit on such bond cannot be sus-
tained under the statute.
If, as is my present opinion, the whole penalty be recoverable
in a suit on a statutory bond, yet it is not recoverable on a bond
rendered valid only by the common law, and deriving no aid
from the statute. This is a contract said to be good at common
law, and if it be, then being a contract made in Virginia, the
United States could only recover according to the laws of Vir-
ginia the damage actually sustained. In the judicial act it is
declared, that, in such cases, the court shall give judgment only
for so much as is equitable, which must, on the application of
either party, be referred to a jury. But I am strongly inclined
to the opinion that bonds taken to the government by one of
its officers, to prevent the commission of an act rendered culpable
by statute, if not valid under the statute, cannot be supported
at common law, so as to recover damages. I can perceive no
criterion by which damages may be ascertained.
I am by no means clear in this opinion; but as the award of a
writ of inquiry, with directions to consider the penalty as no
guide to the jury in estimating damages, would be obviously a
proceeding never contemplated by the law in these cases, I shall
not award one, but shall sustain the demurrer.
Çittttit (20titt of tige Jämitti'ſ Sºtates,
VIRGINIA, NOVEMBER TERM, 1811.
IBEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
THE UNITED STATEs v. GoRDON & SHEPHERD.
A statutory bond taken in a penalty greater than that prescribed by law, is void,
whether the statute prescribes a specific sum as a penalty, or a standard by
which that penalty is to be measured, so as to give a precise sum. If, in the
latter case, from the nature of things, the exact penalty could not be ascer-
tained with absolute mathematical precision, and the variance should be so
inconsiderable as to be entirely compatible with an honest difference of opinion,
it would be a question for the jury to decide, whether, under such circum-
stances, the signature of the bond, without objection, by the obligor, would
not import his assent to the estimate as the true value. But where the statute
prescribed twice the value as the penalty, and the defendant pleaded that the
bond was taken in more than thrice the value, and that it was obtained by
constraint, and the plaintiffs demurred to the plea, thus admitting the allega-
tions of the plea : the demurrer was properly overruled. The plea was good,
and the bond a nullity. This position, entirely sustainable as it is on general
principles, must be especially true, in a case in which the person taking the
bond would, in the event of forfeiture, be entitled, under the law, to half the
penalty.
NOVEMBER TERM, 1811. I 91
The United States v. Gordon & Shepherd.
THIS was an action of debt, brought in the district court of
the United States at Richmond, upon an embargo bond, executed
by Salem Woodward, William Gordon, and John M. Shepherd,
which bond was in the words and figures following, to wit:
“Know all men by these presents, that we, Salem Woodward,
master of the brigantine Essex of Newburyport, and owner,
William Gordon, and John M. Shepherd, are held and firmly
bound unto the United States of America, in the sum of $21,000,
to be paid unto the said United States, for which payment well
and truly to be made, we bind ourselves, &c. Sealed with our
seals, and dated this 2d day of November, 1808.
“Whereas, the following goods, wares, and merchandise;
that is to say, 800 barrels of flour, and 57 barrels of naval stores,
as per manifest, now delivered the collector of the customs of
the district of Tappahannock, and intended to be transferred in
the said vessel called the Essex, of Newburyport, burthen 108.
13-95 tons, to the port of Newburyport, in the state of Massa-
chusetts : Now, the condition of the above obligation is such,
that if the abovementioned merchandise shall be relanded in the
United States, at the port aforesaid, or at some other port of the
United States, the dangers of the seas only excepted, the above
obligation to be void, else to remain in full force and virtue.”
This suit was brought to recover the penalty of the above bond,
which the plaintiffs claimed by reason of an alleged violation of
the condition thereof. Process was issued on Gordon & Shep-
herd only, and the suit abated as to Woodward. The counsel
for the defendants, craved oyer of the bond and condition, and
pleaded several special pleas, to all of which the attorney for
the United States demurred. The matter of defence contained
in the plea, on which the judgment was rendered in the district
court, was, that the bond was in a penalty “ more than double
the value of the vessel and cargo, mentioned in the recital and
condition of the bond, to wit:(1) in the sum of $8000 more
(1) Embargo Act of 22d December, 1807, § 2, and supplementary Embargo
Act of 9th January, 1808, § 1. See 2 Story’s ed. Laws of U. S. 1071-[Editor.]
I 92 ... “ VIRGINIA.
The United States v. Gordon & Shepherd.
than double the value thereof, and that the obligors were con-
strained to execute the said bond, by the refusal of the collector
of the port of Tappahannock to clear, and permit the vessel and
her cargo to depart from the port and district of Tappahannock,
until the said bond was executed as aforesaid.” To this plea
the attorney for the United States demurred, and the defendants
joined in demurrer. The district court overruled the demurrer,
and gave judgment for the defendants, and the plaintiffs obtained
a writ of error to this Court.
The following opinion was delivered by
MARSHALL, C. J.-This cause comes on to be heard on seve-
ral pleas, to which demurrers have been filed. One of these
demurrers was overruled in the district court, and the first in-
quiry will be, whether this Court concurs with that in the judg-
ment on this demurrer. The plea states that the bond was given
by constraint, in more than three times the value of the vessel
and cargo, instead of double their value, the latter being the
penalty prescribed by law, and the truth of this allegation is
confessed by the demurrer.
If the law had prescribed a penalty in $20,000, and the bond
had been taken in a penalty of $30,000, all would admit that
such bond could not be supported under the statute. I perceive
no principle on which it can be maintained, that where the
statute, instead of prescribing a precise sum as a penalty, pre-
scribes a standard by which that penalty is to be measured, so as
to give a precise sum, the officer can discard that standard, and
substitute, in the place of it, his own will. Precedents for such
a position may be searched for in vain, and such a proposition
appears to me to be peculiarly unsustainable in a case, where the
person, whose will is to be substituted in the place of the law,
is to have half of the penalty. W
The attorney for the United States rests his argument, on this
part of the case, on the difficulty of ascertaining precisely the
value of a vessel and cargo, and on the honest difference of
NOVEMBER TERM, 1811. 193
The United States v. Gordon & Shepherd.
opinion which might prevail between different individuals on
such a point.
That there may be some difference of opinion on the question
of value, will be readily conceded; and if the attorney ought to
prove by this argument, that a bond ought not to be avoided
in consequence of this variance, its weight would be acknow-
ledged. This argument would be urged with irresistible force
to a jury in a case where the penalty was objected to on grounds
which admit its application. If, in the opinion of a witness, or
a juryman, the estimate of the collector exceeded the real value
so far only as was compatible with an honest difference of opin-
ion, it would be for the jury to decide, whether in such a case,
under all its circumstances, the signature of the bond without
objection, might not be considered as an assent to the estimate, or
if this be inadmissible, as the real value. But by the demurrer,
every thing of this kind is waived, and the fact is admitted that
the penalty is not in the sum prescribed by law.
The estimate of the collector, it is said, must be conclusive.
Had the law said so, the court could only have obeyed the law.
But this is not its language. Instead of expressing its will in
such a manner as to indicate an intention that the estimate of the
collector shall be conclusive, the legislature has referred to a
standard entirely distinct, and has, consequently, subjected his
will to the control of the standard.
It is also contended, that the act is to be construed in like man-
ner as if the words “at least” had been introduced; the effect
of which would be, that the collector would have been at liberty
to make a penalty, in which he was to participate, what he might
please, provided it was not too small. -
But, certainly, this is a conjecture which neither the letter, nor
the spirit of the law, would warrant. However determined the
legislature might be on punishing offenders against the embargo
laws, they never intended to surrender the right of regulating
the extent of that punishment to their collectors. -
But it is said that a remedy for every oppression that might
be practised by the collector is to be found in the power given
Vol. I.—2 B
194 VIRGINIA.
The United States v. Gordon & Shepherd.
to the Secretary of the Treasury to mitigate or remit penalties;
and the court is reminded of its duty to give effect to the inten-
tion of the legislature, and not to employ itself on the policy of
the law. - * .
Nothing is more correct than this admonition. But how is
the court to effect the intention of the legislature ? Certainly
not by inflicting a penalty of $30,000 in a case where the legis-
lature has declared its intention to be, that the penalty should not
exceed $20,000, nor by referring it to the Secretary of the
Treasury to correct the judgment of the court, in a case in which
it has transcended the law, because he has the power to remit
a part where it has not exceeded the law. The discretion of the
Secretary may be exercised, in particular cases, where the court
has rendered a judgment conformable to law, but this can never
authorize the court to transcend the law, in order to give him
an opportunity to display his clemency.
The judgment of the court is affirmed.(2)
(2) It is apprehended, that this decision is not in conflict with that of the
Supreme Court of the United States, in the case of Speake et al. v. The United
States, 9 Cranch, 28; 3 Con. Rep. Sup. Ct. U. S., 244. That was an action of
debt for $8787, upon an embargo bond, dated April 14th, 1808, taken by the col-
lector of the port of Georgetown, conditioned to be void, if the brig Active should
not proceed to any foreign port or place, and the cargo should be relanded in some
port of the United States. The bond was executed by Speake, the master, and by
Beverly and Ober, the owners of the cargo, in compliance with the provision of
the first section of the act of January 9th, 1808, cited above. The defendants
pleaded various pleas, severally and jointly; to some of which there was a general
demurrer and joinder. The circuit court for the District of Columbia, in which
the action was brought, decided all the demurrers in favour of the United States,
and the case was carried by writ of error to the supreme court. The second
joint plea was as follows: “That the defendants ought not to be charged, &c.,
because they say, that the said writing obligatory was required and taken by one
John Barnes,” collector, &c., “by colour of his said office, and by pretence of an
act of congress, &c., [the act of January 9th, 1808, which said writing obliga-
tory and the condition thereof were not taken by the said John Barnes, collector,
&c., pursuant to the said act of congress, but contrary thereto in this, to wit:
that the said writing obligatory was taken in a sum more than double the value
of the vessel and cargo, in the condition of the said writing obligatory mentioned;
NOVEMBER TERM, 1s11. 195
THE UNITED STATEs v. –.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
A statutory bond, which superadds a condition that the statute does not autho-
rise, is not vitiated by the surplus matter, but the court will reject the surplu-
sage as a mere nullity, and construe the bond as if such surplus matter was
not contained in it. But a statutory bond is vitiated by the omission of a ma-
terial condition required by the statute, viz.: “ dangers of the seas eaccepted.”
MARSHALL, C. J.-This is a writ of error to a judgment
rendered in the district court, in favour of the defendant, on a
by reason whereof the said writing obligatory became void and of no effect in
law ; and this the said defendants are ready to verify; wherefore, &c.”
To this plea there was a general demurrer and joinder. -
Judge Story, in delivering the opinion of the court, said:—“The second joint
plea of the defendants alleges, that the bond was not taken pursuant to the act of
congress, but contrary thereto, in this, that the bond was taken in a sum more
than double the value of the vessel and cargo, whereby the bond became
void. On demurrer to this plea and joinder in demurrer, the court below gave
judgment for the United States; and we are of opinion, that the judgment so
given ought to be affirmed. There is no allegation or pretence, that the bond
was unduly obtained by the collector, colore officii, by fraud, oppression, or
circumvention. It must, therefore, be taken to have been a voluntary bona ſide
bond. The value was a matter of uncertainty, and the ascertaining of that value
was the joint act and duty of both parties. When once that value was ascer-
tained and agreed to by the parties, and a bond executed in conformity to such
agreement, the parties were estopped to deny, that it was not the true value. If
an issue had been taken upon the fact, the evidence on the face of the bond
would have been conclusive to the jury; and if so, it is not less conclusive upon
demurrer. It would be dangerous in the extreme, to admit the parties to avoid a
sealed instrument by averring that there was an error in the value by an inno-
cent mistake, or by accident, or by circumstances against which no human fore-
sight could guard. A mistake of one dollar would be as fatal as of $10,000.
Suppose the double value were underrated, could the United States avoid the
bond, and thereby subject the parties to the penalties of the third section 4
Where the law provides, that the penal sum of a bond shall be equal to the double
value, and the parties voluntarily and without fraud assent to the insertion of a
given sum, it is as much an estoppel as if the bond had specially recited, that
such sum was the double value.” - - *
The majority of the Court affirmed the judgment of the court below. MARsh AEL,
196 - VIRGINIA.
The United States v. — —.
bond taken to the United States, under the act laying an embargo.
It is such a bond as was declared void, in the case of the United
States v. Dixon, and is now brought up for the purpose of revis-
ing that decision.(1)
It is unquestionably the duty of every court, to review its
own judgments with the same impartiality, with which it reviews
the judgments of other tribunals; and if this Court fails in the
performance of that duty, the failure is unknown to itself.
Previous to his entering on his argument, the attorney for the
United States called the attention of the Court to an inconsis-
tency in the different parts of the opinion, rendered in the case
of The United States v. Dixon. In that case, as in this, the
condition of the bond was in part unauthorised by law, and a
condition was omitted, which the law was supposed to require.
In its reasoning, the Court inclined to the opinion, that the sur-
plusage did not vitiate the bond; but determined that it was
vitiated by the omission of a material condition required by law.
The reason for determining the two objections differently, is
C. J. said, he was rather inclined to think that the plea was good, which stated,
that the bond was given for more than double the value of the vessel and cargo.
If the bond was given for more than double that value, he thought it was void in
law. He should not, however, have intimated his opinion on this point, if a
dissenting opinion had not been given on another point in the cause, and his
silence might have been construed into an assent to the entire opinion of the
Court, as it had been delivered. - -
In the above extract from the opinion of the Court, Judge Story relies strongly
upon the fact, that the plea contained no allegation, that the bond was obtained
by the collector, by colour of his office, by fraud, circumvention, or oppression;
from which it may be inferred, that had the plea contained such allegation, it
would have been held good, and the demurrer overruled. But, in The United
States v. Gordon & Shepherd above reported, the plea expressly charged, that
the obligors were constrained to eacecute the bond, by the refusal of the collector,
&c., to clear, and permit the vessel and her cargo to depart, &c., until the said
bond was executed, &c.
The United States carried the above reported case of the United States v. Gor-
don & Shepherd, to the supreme count of the United States, by another writ of
error, but that court dismissed it for want of jurisdiction. 7 Cranch, 287—[Editor.]
(1) Dixon et al. v. The United States, see supra-ſºditor.]
NOVEMBER TERM, 1811. 197
The United States v. — —.
this. The Court supposed itself competent to say, on a bond
containing every thing required by law, and something more,
that the surplusage might be considered as an absolute nullity,
and the bond construed as if such surplus and void matter was
not contained in it. This is not a novel principle. There are
many cases in which surplus matter is rejected. By rejecting it
in this case, the bond conforms to law, and it is an effort to give
validity to the instrument. It is possible, the effort may not be
defensible. - *
But where an essential circumstance required by law, is omit-
ted in the bond, the Court does not believe itself competent to
supply the omission, and to make the bond conform to the sta-
tute. No analogous case is known, in which a court of law ex-
ercises such a power. -
The Court may reason erroneously, in supposing itself com-
petent to reject surplus matter, stated in a statutory obligation,
which contains every thing required by law, and incompetent to
insert in such obligation, matter which it does not contain; or it
may apply the principles improperly in the case. But the in-
consistency of the two opinions is not perceived. If there be
hostility between them, if there be any irreconcileable opposi-
tion, between the two positions, that a court may reject surplus
matter in an instrument, but cannot aid the want of substance,
that hostility, that opposition, is not yet discovered.
Passing by this supposed inconsistency, on the existence or
non-existence of which the cause certainly does not depend, the
Court will proceed to consider the arguments urged to show, that
the judgment below is erroneous.
The first position to be examined is this :—It is contended
that the law does not require the words “dangers of the seas
excepted,” to be inserted in the bond.(2) ſ
The statute itself must decide how far this position is correct.
(2) See the second section of the original Embargo Act of the 22d of December
1807, quoted at length in note (1) to the case of Dixon et al. v. The United
States, ante, p. 179.-[Editor.]
198 VIRGINIA.
The United States v. — —.
The words are, “the master, &c., of such vessel shall first give
bond, &c.” *.
If no more was intended by this position, than to say that the
very words in which the obligation should be expressed are not
prescribed in the statute, the position would be true in itself, but
the court would be at a loss to discern its application to this
case. On a statute which prescribes, not the words, but the sub-
stance of a bond, the force of that argument is not perceived,
which contends, that because the precise form is not given, the
substance which is given may be disregarded. - .
If it was intended to say that the statute does not require the
exception in some form to appear in the bond, the correctness of
the construction cannot be admitted. .
The statute directs that no registered vessel, having a cargo on
board, shall be allowed to depart from one port of the United
States for another, unless the owner, &c., shall first give bond, &c.
The bond is certainly directed by the statute.
The sum in which it shall be taken is directed.
The purpose for which it shall be taken, is certainly directed
by the statute. It is not supposed that this law will be so construed
by the attorney for the United States, as to be satisfied with a
bond of any description which the caprice of the officer taking
it might suggest. All, it is presumed, will admit that a penal
sum must appear in the bond as being double the value of the
vessel and cargo. But is this obligation to stand single and un-
conditional, as a positive debt due to the United States, on the
execution of the bond * Certainly not. The law does not con-
sider an immediate debt as existing, and if the bond were to bear
that form, its appearance would be in precise opposition to its
real nature, and to the effect the law means to give it. It would
be, too, in opposition, as the court conceives, to the very words
of the act. The bond is, by the statute, to be taken in double
the value, “that the goods, wares, and merchandise, shall be re-
landed in some port of the United States.” The bond is certainly
to secure the relanding of the goods; and how are the words,
“ that the goods, &c., shall be relanded in some port of the United
NOVEMBER TERM, 1811. 199
The United States v. — —.
States,” to be satisfied, otherwise than by inserting those, or
equivalent words, in the bond 2 To me it seems, that by the
language of the statute, they are peremptorily required.
If this be correct, then the exception also must form a part
of the condition. It is impossible to distinguish between the
necessity of inserting one and inserting the other. They are
completely identified in this respect. They are equally required
in the same sentence and the same words. -
I understand the statute, then, as requiring, that the exception
shall appear in the obligation. On this point, its mandate is
positive. • ‘ -
This point will, if possible, be made more clear, by compar-
ing the language of the original embargo act, which prescribes
the bond, with a sentence in the additional act, which directs that
such bonds shall be put in suit.
It is obvious that “other unavoidable accidents”(3) are to
form no part of the bond. -
The establishment of the construction which has been con-
sidered, was, in some degree necessary to the operation of the
next argument urged against the judgment of the district court.
It was, that the insertion of the exception was perfectly use-
less, since without its insertion, the defence would be precisely
the same, because; 1st, being in the law, the exception would
avail the defendant though not in the bond: 2d, the common
law exception is as broad as the statutory exception.
1st, I am, certainly, not prepared to say, that on a suit insti-
tuted on a bond given under the act, the obligor might not avail
himself of this defence, though the exception should not appear
in the instrument, and the instrument should be deemed valid.
Neither am I absolutely prepared to assert the affirmative of
this proposition. I speak of the act as standing alone.
There is no penalty affixed to the failure to reland the goods
except the bond, no duty except what appears in the condition,
no excuse for the non-performance of that duty, but what ap-
(3) Act of March 12th, 1808, ch, 33, § 3–IEditor.] \
200 VIRGINIA.
e-
The United States v. — —.
pears in the exception. The law does not declare that loss by
sea shall excuse the failure to reland the goods in the United
States, but declares that such exception shall appear in the con-
dition. If, without such exception, the bond could be declared
valid as a statutory obligation, then the defence must be made
by pleading an extrinsic matter, which is no otherwise stated to
be a sufficient defence than by being required as a part of the
condition. The rules of pleading and the technical doctrines
respecting specialties, would expose an obligor under such cir-
cumstances to difficulties to which the law did not mean to ex-
pose him. -
2d. The second objection to the judgment is, that the words
omitted are immaterial, because the common law gives an ex-
ception as broad, indeed broader, than that given by the statute.
Neither am I prepared to accede to this proposition. The
term “perils of the seas” in marine insurances, is inserted among
a long list of damages which are enumerated in the same instru-
ment. Marshall, 414.(4) .
In consequence of being placed with so many other perils,
particularly mentioned, this is construed in policies of insu-
rance to have a more restricted meaning than the words of
themselves import. It does not mean dangers from men of
war, &c., because those dangers are particularly recited. But,
standing alone, those words would be much more extensive.
Marshall, 416.
But however this may be, the legislature have commanded
that the exception form a part of the condition of the bond. If
such condition do not appear, it is not such a bond as the statute
has directed, and has authorised the collector to take. The ex-
ception is, in itself, very material, and, therefore, the officer is
not at liberty to dispense with it, although it should be true
that by skilful pleading, the defect might be cured. The act
does not permit him to impose this risk on the obligor. The
(4) 2 Marshall on Insurance, Book I. ch. 12. p. 485, 487. 2d. Am. from 2d.
London edition.—[Editor.]
NovemBER TERM, 1811. 201
\
The United States v. — —.
bond to be good as a statutory bond, ought to contain what the
law requires.(5) -
(5) A brief review of some of the cases decided in the courts of the United
States, involving the questions which have been discussed and settled in the above
opinion, and in that of Dixon et al. v. The United States, seems called for in
this place. They amply sustain the principal positions taken in the above cases
by Chief Justice Marshall. . 4 - .
In the case of the United States v. Morgan and Farquhar. 3 Washington’s C.
C. R. 10, a suit was brought by the United States, (as in both of the above cases)
upon an embargo bond, taken under the 2d section of the original embargo act
of December 22d, 1807. The defendant’s plea set forth the following objections
to the bond: 1st. That the bond should have been made payable to the collector,
and not to the United States. 2d. That the words “dangers of the seas eaccepted”
were omitted in the condition of the bond. To this plea the plaintiff demurred.
Judge Washington admitted that the bond was properly made payable to the
United States, but in reference to the second objection, he said, that as the col-
lector “had no authority to take such a bond but in virtue of a power conferred
upon him by the government of the United States, the power should have been,
at least, substantially pursued. The embargo law, under which this obligation
was taken, does not set out, in precise terms, the form of it; but the material
parts of it are clearly prescribed. It is to be in a sum of double the value of
vessel, and cargo, with condition that the goods shall be re-landed in some port
of the United States, dangers of the seas eaccepted. If it be taken in a greater
sum than the law directs;–if the condition stipulate a relanding elsewhere than
in the United States;—if it stipulate a relanding absolutely when the law re-
quires it to be done on a certain condition, &c.; it is not the bond which the
officer was authorized to take, and all is void. A contrary doctrine might be
productive of the most intolerable oppression to the citizen, as well as of detri-
ment to the government.” “Applying the above principles to this case, the
bond is void.” The demurrer to the plea was overruled, and judgment was ren-
dered for the defendants. This case was decided in Pennsylvania, at the April
Term, 1811, of the circuit court of the United States. - Y-
In the case of the United States v. Smith, 2 Hall's Law Journal, 456, it was
urged as an objection to the validity of an embargo bond, that it was made pay-
able to the United States, instead of to the collector. The objection was over-
ruled. -
In relation to the general principle, that statutory obligations must conform
strictly to the law, by virtue of which they are taken, the decisions, both in
England and this country on the subject, are examined, very carefully and with
much ability, by Judge Hopkinson, in a late case before the district court of the
United States, for Pennsylvania; see The United States v. Brown, Gilpin 155,
decided in February 1830. That was a suit upon an official bond, taken tinder
VoI. I.-2 C
2O2 VIRGINIA.
-º- —ha-
The United States v. — —.
acts of congress, of the 22d of July 1813, and of the 9th of January, 1815.
The condition of the bond was, “that the aforesaid N. R., has truly and faith-
fully discharged, and shall continue truly and faithfully to discharge the duties
of said office, &c.” and the condition prescribed by the law was, “for the true
and faithful discharge of the duties of his office, according to law.” The officer
had given a similar bond, with the same condition, two years before, but the
sureties were changed, and the suit was brought against the representative of a
surety to the second bond. The second act contained a proviso, that nothing
contained therein, should “be deemed to annul or impair the obligation of the
bond heretofore given,” &c. The principal question raised by the pleadings in
the cause, was, whether the bond was good as a statutory obligation, the condi-
tion of the bond, so far as it was retrospective, not conforming to the condition
prescribed by the statute, which was prospective only : or, in other words, (as
the judge stated the question in general terms,) “whether if the condition of a
statutory bond, contains more than is required by the statute, the bond is wholly
void 2* The question was, the judge said, not whether the Court could give
the bond this retrospective effect, according to its tenor: that was not pretended
on the part of the plaintiffs : but whether this retrospective condition, departing
from the statute, rendered the bond wholly void, so that no recovery could be
had for breaches of the condition, made after the execution and delivery of the
bond 4
After a thorough investigation of all the cases on this subject, the judge con-
cluded as follows: “From the examination of the case, we may consider it as
settled, that if a bond be -taken at the common law, with a condition in part
good, and in part bad, a recovery may be had on it for a breach of the good part.
This being the general common law principle, it is incumbent on the defendant
to show, that a different rule is established, in regard to a statutory obligation, on
a bond authorised and required to be taken by a statute. An able and laborious
endeavour has been made to sustain this distinction by the cases, and arguments
drawn from them, to which I have referred with a careful examination. In my
opinion, the distinction is not supported, as applicable to a case like the present,
in which there is nothing in the statute declaring, that bonds that vary from the
prescribed form shall be altogether void, and in which the good part of the con-
dition may be easily separated from the bad. Nothing is required to be added to
the contract, and nothing to be taken from it, but what is favourable to the
obligor; by diminishing the extent of his responsibility.” Judgment on the de-
murrer rendered for the United States. This opinion of Judge Hopkinson, is in
conformity with those of Washington, J., in Armstrong v. The United States,
Peters' C. C. R., 46, decided in 1811, and in the United States v. Howell,
4 Wash. C. C. R., 620, decided in 1826.-[Editor.] -
NOVEMBER TERM, 1811. 203
LIVINGSTON v. JEFFERson.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
HoN. S.T. GEORGE TUCKER, District Judge.
An action for a trespass committed on lands, is a local action, and the United
States circuit court for the district of Virginia, cannot take cognizance of a
trespass committed on lands lying within the United States, but beyond the
limits of the district, although the trespasser be a resident of Virginia.
The distinction between transitory and local actions is, that the former may have
accrued any where, and those only are considered local, where the cause of
action is necessarily local. -
Actions of trespass on lands, are classed with those actions which demand the
possession of land, and with actions of waste, which are local : whilst actions
founded on contracts respecting lands are transitory, and may be sustained
wherever the defendants are found.
Although this distinction is merely technical, and Lord JMansfield attempted to
abolish it, and to establish as the proper rule, the distinction between such
actions as operate in rem, and such as merely sound in damages, [and if his
opinion had prevailed, the action of trespass on land would have been deemed
a transitory action,] yet the old distinction is too firmly established to be now
shaken. w
The adjudications of English courts, pronounced since the American Revolution,
are not of binding authority in the courts of this country, but they are entitled
to the respect which is due to the opinions of wise men, who have maturely
considered the case they decide. And where a distinction is of ancient date,
and the attempt to overrule it has itself been overruled since the Revolution,
such modern adjudication can be considered in no other light, than as the true
exposition of the ancient rule.
The jurisdiction of the courts of the United States, depends exclusively on the
Constitution and laws of the United States.
THIS was an action of trespass, brought in the circuit court
of the United States, for the district of Virginia, by Edward
Livingston, a citizen of the state of New York, against Thomas
Jefferson, a citizen of the state of Virginia, and late President of
the United States, for a trespass alleged to have been committed
by the defendant whilst he was President, in removing him from
the Batture, in the city of New-Orleans, in the then territory of
204 VIRGINIA,
Livingston v. Jefferson.
Orleans, now the State of Louisiana. The suit was commenced
in 1810, after the expiration of Mr. Jefferson’s last term of office.
The declaration contained eight counts. The first count
charged, that the defendant, on the 25th day of January, 1808,
at the city of New-Orleans, in the district of Orleans, to wit, at
Richmond, in the county of Henrico, and District of Pirgi–
nia, with force and arms, a certain messuage or dwelling-house,
and a close or parcel of land thereto adjoining, the said close be-
sing part of a parcel of land, known by the name of the Batture
of the suburb St. Mary, of him, the said Edward, then and there
being, did break and enter, and 200 spades, [and various other
tools, planks, rails, nails, &c., specifying the number and kind,
of the proper goods and chattels of the said plaintiff, of the value
of ten thousand dollars, then and there being found, did break,
cut in pieces, and utterly destroy, and 200,000 cart loads of earth,
[sand and clay, of the soil of the said close, with spades, &c.,
did dig and raise, the said soil so dug and raised being of the
value of $50,000, and with carts, &c., did carry away and con-
vert to his own use, by which digging, the soil of the said close
was greatly injured, and the said plaintiff wholly lost the said
parcel thereof so dug and raised, &c.
All the other counts laid the venue in the same way, “at the
city of New-Orleans, &c., to wit, at Richmond, &c. &c.”
The second count charged the defendant with the forcible
breaking and entry of the said close, and the putting out, expel-
ling, and removing the said plaintiff from the possession and
occupation thereof, from the said 25th of January, till the serving
out the writ in this suit, and with digging and carrying away
the earth, &c., during that time, whereby the plaintiff not only
lost the said soil, but the close was greatly injured, and the plain-
tiff was prevented from making and constructing divers canals,
embankments, and improvements, &c., and from receiving the
rents, and profits thereof, &c.
The third count charged him with entering on the close called
Livingston’s canal, driving off his workmen and servants, and
interrupting their work, during the said period, whereby the
NOVEMBER TERM, 1811. 205
Livingston v. Jefferson.
work being unfinished, the river Mississippi rose, carried away
the materials, and destroyed, and filled up the said canal, &c.
The fourth count charged him with entering on the northern
part of the said Batture, and driving off his, the plaintiff’s, work-
men and servants, engaged in making a levie, embankment, or
dyke, to restrain the annual inundation of the river Mississippi,
and interrupting their work during the said period, during which
the river rose, destroyed the levie, &c., and inundated the
close, &c.
The fifth count is the same with the first, except that the
charge is that the defendant, “with his servants” did enter, &c.
The sixth, seventh, and eighth counts, are the same with the
second, third, and fourth, with the same exception.
The defendant demurred to the second, fifth, sixth, seventh,
and eighth counts. He also pleaded the general issue, and four
several pleas of justification. He justified the act as being done
under a law of congress, and in his character of President of the
United States, without malice. It is unnecessary to say more
of these pleadings, since the question before the court turned on
the third plea, which was a plea to the jurisdiction of the court.
That plea was as follows, “and the said defendant in his proper
person, comes and defends the force and injury, and saith that
the messuage, or dwelling-house, and close or parcel of land, be-
ing a part of a parcel of land known by the name of the Batture
of the suburb St. Mary, in the first and fifth counts of the plain-
tiff’s declaration mentioned, and the several closes in the second,
third, fourth, sixth, seventh, and eighth counts of the plain-
tiff’s declaration mentioned, for the supposed breaking and
entering of which said messuage, or dwelling-house, and closes,
the said action is brought, are not situate, lying, and being with-
in the Virginia district, or within the jurisdiction of this
Court, but are situate, lying and being in the territory of the
United States of America, called the territory of Orleans, in which
said territory there was, at the time of the said supposed tres-
passes, and long before, and at the time of the institution of the
plaintiff’s said action, and yet is, a court of competent jurisdic-
206 VIRGINIA.
Livingston v. Jefferson.
tion to try and decide upon all pleas of trespass, and all causes of
action arising within the said territory, wherefore since the
house and lands in the declaration mentioned are not within
the Virginia district, and the jurisdiction of this court, but in the
said territory, the defendant prays judgment, if the court here
will, or ought to have further conusance of the plea aforesaid, &c.
To this plea the plaintiff replied, that ever since his cause of
action, against the said defendant, accrued, “the said defendant
has resided without the jurisdiction of the courts of the territory
of Orleans aforesaid, to wit, within the district of Virginia, and --
within the jurisdiction of this court, where he now resides, by
reason whereof he is not amenable to the jurisdiction of the
courts of the territory of Orleans aforesaid, for the trespasses in
the declaration set forth, wherefore he prays judgment, &c.”
To this replication the defendant demurred generally, and the
plaintiff joined in demurrer.
The case was argued by Wickham for the plaintiff, and by
Hay, Wirt, and Tazewell, for the defendant.
December 5th, 1811, the following opinion was delivered by
MARSHALL, C. J.-The sole question in this case is:—Can
this Court take cognizance of a trespass committed on lands
lying within the United States and without the Commonwealth
of Virginia, in a case where the trespasser is a resident of, and
is found within, the district 2 I concur with my brother judge
in the opinion, that it cannot.
I regret, that the inconvenience to which delay might expose
at least one of the parties, together with the situation of the
Court, will not admit of my bestowing on this question, that
deliberate consideration which the very able discussion it has
received at the bar would seem to require ; but I have pur-
posely avoided any investigation of the subject previous to the
argument, and must now content myself with a brief statement
of the opinion I have formed, and a sketch of the course of
reasoning which has led to it.
This doctrine of actions, local and transitory, has been traced
NOVEMBER TERM, 1811. 207
Livingston v. Jefferson.
up to its origin in the common law, and, as has been truly stated
on both sides, it appears, that, originally, all actions were local ;
that is, that according to the principles of the common law,
every fact must be tried by a jury of the vicinage. The plain
consequence of this principle was, that those courts only could
take jurisdiction of a case who were capable of directing such a
jury as must try the material facts on which their judgment
would depend. The jurisdiction of the courts, therefore, neces-
sarily became local with respect to every species of action.
But the superior courts of England having power to direct a
jury to every part of the kingdom, their jurisdiction could be
restrained by this principle, only to cases arising on transactions
which occurred within the realm. Being able to direct a jury
either to Surrey or Middlesex, the necessity of averring in the
declaration, that the cause of action arose either in Surrey or Mid-
dlesex, could not be produced in order to give the court juris-
diction, but to furnish a venue. For the purpose of jurisdiction,
it would, unquestionably, be sufficient to aver, that the transac-
tion, out of which the cause of action arose, occurred within the
realm.
This, however, being, not a statutory regulation, but a princi-
ple of unwritten law, which is really human reason applied by
courts, not capriciously, but in a regular train of decisions, to
human affairs, for the promotion of the ends of justice; accord-
ing to the circumstances of the nation, the necessity of the times,
and the general state of things, was thought susceptible of
modification; and judges have modified it. They have not
changed the old principle as to form. It is still necessary to
give a venue, and where the contract exhibits on its face
evidence of the place where it was made, the party is allowed
to aver that such place is in any county in England. *
This is known to be a fiction. 1,ike an ejectment, it is the
creature of the courts, and is moulded to the purposes of justice,
according to the views which its inventors have taken of its
capacity to effect those purposes. It is not, however of unde-
finable extent. It has not absolutely prostrated all distinctions
208 VIRGINIA.
Livingston v. Jefferson.
of place, but has certain limits prescribed to it, founded in
reasoning, satisfactory to those who have gradually fixed those
limits. It may well be doubted whether, at this day, they
might be changed by a judge not perfectly satisfied with their
extent. -
This fiction is so far protected by its inventors, that the aver-
ment is not traversable for the purpose of defeating an action it
was invented to sustain, but it is traversable whenever such
traverse may be essential to the merits of the cause. It is
always traversable for the purpose of contesting a jurisdiction
not intended to be protected by the fiction.
In the case at bar, it is traversed for that purpose; and the
question is, whether this is a case in which such traverse is
sustainable 2 or, in other words, whether the courts have so far
extended their fiction, as, by its aid, to take cognizance of actions
of trespass on lands not lying within those limits which bound
their process 2 - . . . . . . . .
They have, without legislative aid, applied this fiction to all
personal torts, wherever the wrong may have been committed,
and to all contracts, wherever executed. To this general rule,
contracts respecting lands form no exception. It is admitted,
that on a contract respecting lands, an action is sustainable
wherever the defendant may be found. Yet in such a case,
every difficulty may occur that presents itself in an action
of trespass. An investigation of title may become necessary,
a question of boundary may arise, and a survey may be essen-
tial to the full merits of the cause. Yet these difficulties
have not prevailed against the jurisdiction of the court. They
are countervailed, and more than countervailed, hy the opposing
consideration, that if the action be disallowed, the injured party
may have a clear right without a remedy, in a case where a per-
son who has done the wrong, and who ought to make the com-
pensation, is within the power of the court.
That this consideration should lose its influence where the ac-
tion pursues a thing not in the reach of the court, is of inevitable
necessity ; but for the loss of its influence where the remedy is
NovKMBER TERM, sil. 209
Livingston v. Jefferson.
against the person, and is within the power of the court, I have
not yet discerned a reason, other than a technical one, which
can satisfy my judgment.
If, however, this technical reason is firmly established, if all
other judges respect it, I cannot venture to disregard it.
The distinction taken is, that actions are deemed transitory,
where the transactions on which they are founded, might have
taken place any where ; but are local, where their cause is in
its nature, necessarily local.
If this distinction is established ; if judges have determined
to carry their innovation on the old rule no further; if, under
circumstances which have not changed, they have determined
this to be the limit of their fiction, for a long course of time, it
would require a hardihood, which, sitting in this place, I cannot
venture on, to pass this limit.
This distinction has been repeatedly taken in the books, and
is recognised by the best elementary writers, especially by Judge
Blackstone, from whose authority no man will lightly dissent.(1)
He expressly classes an action of trespass on lands, with those
actions which demand their possession, and which are local; and
makes those actions, only, transitory, that are brought on occur-
rences, which might happen any where. From the cases that
support this distinction, no exception, I believe, is to be found
among those that have been decided in Court on solemn argu-
ment.
One of the greatest judges who ever sat upon any bench, and
who has done more than any other, to remove those technical
impediments which grew out of a different state of society, and
too long continued to obstruct the course of substantial justice,
was so struck with the weakness of the distinction between taking
jurisdiction in cases of contracts respecting lands, and of torts
committed on the same lands, that he attempted to abolish it. In
the case of Mostyn v. Fabrigas, [I Cowper, 161.] Lord Mans-
(1) 3 Blackstone's Commentaries, 294. See also Mr. Chitty’s note (4) in his
edition of Blackstone, vol. ii. 233.-[Editor.] -
Vol. I.-2 D
210 virginia.
. Livingston v. Jefferson.
field stated the true distinction to be, between proceedings which
are in rem, in which the effect of the judgment cannot be had,
unless the thing lay within the reach of the court, and proceed-
ings against the person, where damages only are demanded.
But this opinion was given in an action for a personal wrong,
which is admitted to be transitory. It has not, therefore, the
authority to which it would be entitled, had this distinction been
laid down in an action deemed local, and may be termed an
obiter dictum. He recites, in that opinion, two cases decided by
himself, in which an action was sustained for trespass on lands
lying in the foreign dominions of his Britannic Majesty. But
both those decisions were at nisi privs, and though the over-
bearing influence of Lord Mansfield might have sustained them
on a motion for a new trial, that motion never was made, and
the principle did not obtain the sanction of the court. In a
subsequent case reported in 4th Durnford and East, p. 503,
[Doulson v. Matthews] (1792), these decisions are expressly re-
ferred to and overruled, and the old distinction is affirmed.
It has been said that the decisions of British courts made
since the Revolution, are not authority in this country. I admit
it. But they are entitled to that respect which is due to the
opinions of wise men, who have maturely studied the subject
they decide. Had the regular course of decisions, previous to
the Revolution, been against the distinction now asserted, and had
the old rule been overthrown by adjudications made subsequent
to that event, this Court might have felt itself bound to disregard
them ; but where the distinction is of ancient date, has been
long preserved, and a modern attempt to overrule it has itself
been overruled since the Revolution, I can consider the last adju-
dication in no other light than as the true declaration of the an-
cient rule. - { - -
According to the common law of England, then, the distinc-
tion taken by the defendants, between actions local and transitory,
is the true distinction, and the action of trespass, quare claw-
sum fregit, is a local action.(2) -
(2) In the state courts of Virginia all actions of debt for rent in arrear, all
NOVEMBER TERM, 1811. 211
Livingston v. Jefferson.
This common law has been adopted by the legislature of Vir-
ginia. Had it not been adopted, I should have thought it in
force. When our ancestors migrated to America, they brought
with them the common law of their native country, so far as it
was applicable to their new situation, and I do not conceive that
the Revolution, would, in any degree, have changed the relations
of man to man, or the law which regulated those relations. In
breaking off our political connexion with the parent state, we
did not break off our connexion with each other. It remained
subject to the ancient rules, until those rules should be altered
by the competent authority. <&
But it has been said, that this rule of the common law is, im-
pliedly, changed by the act of assembly, which directs that a
jury shall be summoned from the by-standers.
Were I to discuss the effects of this act in the courts of the
state, the inquiry, whether the fiction already noticed, was not
equivalent to it in giving jurisdiction, would present itself.
There are, also, other regulations, as that the jurors should be
citizens, which would deserve to be taken into view. But I
postpone these considerations, because I am decidedly of opinion,
that the jurisdiction of the courts of the United States depends,
exclusively, on the Constitution and laws of the United States.
In considering the jurisdiction of the circuit courts, as defined
in the judicial act, and in the Constitution, which that act carries
into execution, it is worthy of observation, that the jurisdiction
of the court depends on the character of the parties, and that
only the court of that district in which the defendant resides, or
is found, can take jurisdiction of the cause. In a court so con-
stituted, the argument drawn from the total failure of justice,
actions on the case for the use and occupation of lands and tenements, all actions of
trespass quare clausam fregit, and all actions of waste, may now be prosecuted
in the county or corporation in which the defendant may reside or be found, in
like manner as transitory actions may be prosecuted therein. 1 R. C. of 1819,
p. 450, § 14. See the opinion of GREEN, J., in Payne v. Britton’s Executors,
6 Rand. 105, where the extent of the abolition of the old distinction between
local and transitory actions effected by this act is discussed.—[Editor.]
212 VIRGINIA.
Letcher & Arnold v. Woodson.
.r-
should a trespasser be declared to be only amenable to the court
of that district in which the land lies, and in which he will
never be found, appeared to me to be entitled to peculiar weight.
But according to the course of the common law, the process of
the court must be executed, in order to give it the right to try
the cause, and, consequently, the same defect of justice might
occur. Other judges have felt the weight of this argument,..and
have struggled ineffectually against the distinction which pro-
duces the inconvenience of a clear right without a remedy. I
must submit to it.
The law, upon the demurrer, is in favour of the defendant.
LETCHER & ARNOLD v. WooDson.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
Quaere, Where a man covenants to convey lands, and breaks his covenant to con-
vey, in order to avail himself of their increased value, and an action of cove-
nant is brought to recover damages for the breach, if the value of the lands
at the time of trial should not be the standard of damages 4
But it seems, that where a man contracts for the sale of lands, without fraud, and
it afterwards appears that he had, in truth, no title to the lands when the con-
tract was entered into, and, in consequence of his want of title, he refuses to
convey, the standard of damages, in an action founded upon the covenant, is
the value of the lands at the time of the contract entered into, and not their
value at the time of trial. [But see the note of the Chief Justice at the end
of this case.]
Whether the jury in such a case, should allow interest upon the value of the
lands at the date of the contract, must depend upon the circumstances of the
case, of which they are the proper judges, and it is competent for the de-
fendant to give in evidence to the jury, any circumstances tending to show
that interest should not be allowed.
NOVEMBER TERM, 1811. 213
Letcher & Arnold v. Woodson.
THIS was an action of covenant brought in 1805, by the
plaintiffs, Stephen G. Letcher and Stephen Arnold, citizens of
Kentucky, against Samuel Woodson, a citizen of Virginia, to
recover damages for the breach of a covenant, made by the de-
fendant with the plaintiffs, on the 30th of August, 1793, whereby
the defendant bound himself, his heirs, &c., in consideration of
£40, to be paid in horses, twelve days from the date of the
contract, and of £160 in like manner, to be paid on the 10th
day of November ensuing, by the plaintiffs to the defendant, to
make to the plaintiffs a good title, in fee simple, to 666; acres
of land in Mercer county, Kentucky. The plaintiffs alleged in
their declaration, a full performance of their covenants, and
claimed damages from the defendant for failing to make a good
title according to his covenant, &c. The defendant craved oyer,
and pleaded covenants performed, and various special pleas,
which it is unnecessary to notice. At the November Term of
this Court, 1811, the jury found the following special verdict:
“It appearing in this cause, that before, and at the time of the
covenant in the declaration mentioned, the plaintiffs resided, and
have ever since resided in the state of Kentucky, in the neigh-
bourhood of the lands in the declaration mentioned, and that the
defendant’s testator, during that whole period, and till the time
of his death, resided in Goochland county, Virginia, where the
covenant was entered into : that the plaintiffs, after the first pay-
ment of two horses on the 10th of September, 1793, viz.: in
the December following, went out of Virginia to Kentucky, and
never had any further communication of any kind with the de-
fendant’s testator, until December 1805, when, for the first time,
he tendered the balance of the consideration, viz. : £160 in
horses, at which time it was ascertained and known, both to the
plaintiffs and the defendant’s testator, that the title of the de-
fendant’s testator to the lands sold, was not good, the jury pray
the judgment of the court on the rule by which they ought to
be regulated in assessing the damages.
“We find for the plaintiffs: and, 1st. If in the opinion of the
court, the present value of the land be the standard by which
214 VIRGINIA.
Letcher & Arnold v. Woodson.
damages ought to be regulated, we assess the damages to $4,000.
2dly. If the value of the land, at the date of the covenant, or
when the deed ought to have been executed, be the standard of
damages, we assess the damages to $2533. 3dly. If, in the opi-
nion of the court, the standard of remuneration be the price
contracted for, then we assess the damages to $1266 50, 4thly.
If we are at liberty to take into consideration, all the circum-
stances of the case in the first part of the preceding statement,
so as no to be tied down to either of the foregoing standards on
abstract principles, then we assess the damages to $324 67.”
The Court took time to consider of the judgment proper to
be rendered on this special verdict, and at a subsequent period
of the same term, delivered the following opinion.
MARSHALL, C. J.-This is a suit instituted by the plaintiffs to
recover against the defendant, damages for the non-conveyance of
land, lying in Kentucky, which the defendant had stipulated to
convey. The jury in their verdict present to the Court certain
circumstances which appeared to them to be material, and then
pray the advice of the Court respecting the standard by which,
under those circumstances, damages ought to be measured.
They request the opinion of the Court whether the damages
ought to be regulated by
1st. The value of the land at the date of the contract, or fail-
ure to convey. t |
2d. By its value at the time of trial; or,
3d. By the price contracted for, or -
4th. By their own opinion, under all its circumstances, of the
justice of the case.
One of these circumstances is, that the title of the vendor was
defective, and this circumstance is connected with one other,
to wit, that the plaintiffs resided at the time in Kentucky, where
the lands lay, and the defendant in Virginia.
It has always been my individual opinion, that in a case where
the lands sold are retained by the vendor, and he breaks his
covenant to convey, in order to avail himself of the increased
NovKMBER TERM, 1811. 215
Letcher and Arnold v. woodson.
value, that he ought to be liable for the value of the lands at the
time of trial. I suspect that this is not the opinion of the
judges of the supreme court; of this, however, I am not confident.
Had this been such a case, I am inclined to think that my opin-
ion would have been in favour of the highest sum mentioned in
the verdict. [Note (1) at end of this case.—Editor.]
But this is not such a case. The vendor appears to have sold,
without fraud, lands to which he believed himself to be entitled.
He was mistaken. The motives for subjecting him to the in-
creased value of lands exist no longer. If he should be sub-
jected to pay this increased value, it must be on principles of
strict law, in opposition to the real justice of the case.
I find no such principle of law, and I find maxims entitled t
respect which militate against it. One of these is, that in cases
of doubtful law, where the one party seeks to make a gain, and
the other to avoid a loss, the law will rather favour him who seeks
to avoid a loss. - -
But I can find no principle which, in a case of plain mistake
with respect to title, will permit the damages to grow after the
contract has been broken. I am, therefore, of opinion, that, in
this case, the value of the land at the time of trial is not the
standard of damages. - -
Is the value of the land at the date of contract, or which
is the same thing in this case, at the time when the deed was
demandable and to have been executed, the standard of damages 2
The contest is between the value and the price actually given.
Upon principle, it appears to me that the value at the time must
be taken by the jury as their guide. The reason for this
opinion is given in a single sentence. The value affirms the
contract, and gives damages for its breach ; the price annuls the
contract, and replaces the parties in the same situation as if it
had never been made. I therefore think myself constrained to
say, that the price at the time is not to be the limit of the plain-
tiffs’ right to recover in this action.
But the jury present to the consideration of the Court a fourth
alternative. If the circumstances stated in the verdict will
216 - VIRGINIA.
Letcher & Arnold v. Woodson.
authorise them to depart from all the standards which are men-
tioned, then they find other damages than they would find, if
bound in law by any one of those standards.
That a jury may, if they choose, find a verdict against law, is
admitted; and the Court must either render judgment according
to such verdict, or set it aside and award a new trial. But in
this case, the jury have not chosen to find a verdict against law.
They have asked the opinion of the Court whether, in point of
law, the circumstances stated in their verdict, warrant a depart-
ure from all the principles stated in their preceding findings.
Those circumstances, therefore, are to be considered.
They are, that the plaintiffs resided in the neighbourhood of
the land in Kentucky, and the defendant in Virginia, where
the contract was made; that the vendor had no title to the land
% sold, and that the whole purchase money was not paid, nor was
the deed demanded until twelve years after the contract was
made, when the defect of the title was known. .
These circumstances may have some influence in the selection
of the standard, or in the estimate of damages under that stand-
ard, but they cannot justify a disregard of every rule whatever.
I do not think, therefore, that judgment ought to be rendered
upon the fourth finding of the jury.
The argument at the bar will, it is believed, authorize, if it
does not require the court, to say something respecting the tes-
timony admitted in this cause. The counsel for the plaintiffs
seem to suppose that every species of testimony ought to be ex-
cluded, except that which would show the execution of the deed,
or the value of the land. I do not think so.
To me, it appears that the testimony may tend to fix the
standard of damages; and that the complexion of the case may
fairly have some influence on the jury, in estimating damages
under that standard. -
The testimony, showing that the non-conveyance of the land,
arose from the want of title in the vendor, has decided the opin-
ion of the Court on the question, whether the value at the day of
NOVEMBER TERM, 1811. 217
Letcher & Arnold v. Woodson.
contract, or at the day of trial, ought to have governed the ver-
dict, and was, consequently, very material in the cause.
The other circumstances stated in the verdict, might influence
the jury, and, in my opinion, were proper to influence the jury
on questions completely within their province. There might
be contradictory and doubtful evidence respecting the value of
the land, and the whole complexion of the case might have
weight in deciding on that testimony. The residence of the
parties especially, and their knowledge of the property, might
deserve to be considered. On the question of interest too, if the
value at the date of contract be the standard, the circumstances
attending the case might be very material. There may be cases
in which a court would instruct a jury that they ought to include
interest in their computation of damages, if they took the value
at the date of the contract as their standard; but there may be
cases, and this is one, in which the Court, on account of the very
circumstances stated in this verdict, would be well satisfied with
the exclusion of interest from the computation of damages. -
These observations would be proper, in a court, unacquainted
with the circumstances which occurred at the trial of the cause.
But gentlemen engaged in the cause will recollect, that the tes-
timony of which they complain was added by themselves. They
stated the defendant’s want of title; they proved the tender in
1805, which established the fact that no previous payment had
been made ; and they proved it in such manner as to justify the
inference, that no previous demand of the deed had been made.
Was it for the Court to say that this testimony might avail the
plaintiffs, and not the defendant * J
Was it for the Court, after the plaintiff had introduced this
testimony, and argued upon it, to check the counsel for the de-
fendant when attempting to apply the same testimony.
The jury had no right to allow the defendant, in their verdict,
so much of the purchase money as remained unpaid, and to this
point they were instructed by the Court. But could the Court
inform the jury, that they were to weigh the case made out by
the plaintiff, according to his testimony, but that the moment
VoI. I.-2 E -
218 VIRGINIA.
Letcher & Arnold v. Woodson.
their attention was directed to the defence, they were to forget
that they had heard it. -
Without regard, however, to the particular party from whom
this testimony came, I have no doubt of its admissibility, under
the directions of the court respecting its application.
Judgment rendered for twenty-five hundred and thirty-three
dollars, the damages assessed by the jury in the second finding
of their verdict. -
NotE, by C. J. Marshall.—Since this opinion was given, I
find that the uniform course of Kentucky, is to give the pur-
chase money with interest, and to this course I now conform,
where no rents and profits have been received.—Where they
have, that circumstance affects the interest.(1)
(1) In an action by the vendee for the breach of a contract of sale by the ven-
dor, in not delivering the article, the measure of damages is the price of the article
at the time of the breach of contract, and not at any subsequent period. Shep-
herd et al. v. Hampton, 3 Wheat. 200; 4 Con. Rep. Sup. Ct. U. S. 233. In that
case the subject of the contract was a chattel. The covenantors agreed to de-
liver at a stipulated day, and for a stipulated price, one hundred thousand pounds
of cotton. The covenantors delivered forty-nine thousand pounds, according to
the contract, but refused to deliver the balance, and the suit was brought to re-
cover damages for the breach. The price agreed on was ten cents per pound ;
the market price on the day stipulated, was twelve cents per pound; and when the
suit was brought, it had risen to thirty cents per pound. MARSHALL, C. J., in deliv-
ering the opinion of the Court, said: “The only question is, whether the price
of the article at the time of the breach of the contract, or at any subsequent
time before suit brought, constitutes the proper rule of damages in this case. The
unanimous opinion of the Court is, that the price of the article at the time it
was to be delivered is the measure of damages. For myself, only, I can say,
that I should not think the rule would apply to a case, where advances of money
had been made by the purchaser, under the contract; but I am not aware what
would be the opinion of the Court in such a case.”
The rule is settled in the supreme court, that in an action by the vendee for a
breach of contract on the part of the vendor, for not delivering the article sold,
the measure of damages is its price at the time of the breach. The price being
settled by the contract, which is generally the case, makes no difference, nor
ought it to make any ; otherwise the vendor, if the article, subsequently to the
contract, rose in value, would always have it in his power to discharge himself
from his contract, and put the enhanced value into his own pocket. Nor can it
NOVEMBER TERM, 1811. 219
Letcher & Arnold v. Woodson.
make any difference on principle, whether the contract be for the sale of real or
personal property, if the lands, as is the case here, have not been improved or
built on. In both cases, the vendee is entitled to have the thing agreed for at
the contract price, and sell it himself at the increased price. Hopkins v. Lee,
6 Wheat. 109; 6 Con. Rep. 23. See also Gilpin v. Consequa, I Peters's C. C.
R., 85, where Judge WASHINGTon said, that where a party fails to comply with
his contract, the value at the time of the breach was the proper standard of
damages, and that the plaintiff would never be permitted to resort to a foreign
market, to which he might have carried the article, to fix the standard of loss.
The same principle, with regard to marine torts, viz.: that the probable profits of
a voyage are not a fit mode for the ascertainment of damages, is laid down by
the supreme court, in the Amiable N ancy, 3 Wheat. 546, and in La Armistad de
Rues, 5 Wheat. 385. [4 Con. Rep. Sup. Ct. U. S., 322, 697.]
So, in a late case before the circuit court of the United States, in Pennsyl-
vania, where a lot of coffee was purchased at a stipulated price, but no day for
the delivery was specified, in an action for damages by the vendees, against the
vendor for a breach of his contract, BALDw1N, J., instructed the jury, that no time
being fixed for the delivery of the coffee, the law made it deliverable in a reason-
able time, which must depend on circumstances; and, in that case, they might
assume the day on which the coffee was demanded as the time of delivery, and
the refusal of the defendant as the breach of the contract. As to the measure of
damages, that was determined by the market value of the article when it was
deliverable. On a motion for a new trial in this case, on the ground that the
jury had found eaccessive damages, HoPKINSoN, J., said, that the rule of law that
the market price, that is, the price actually paid for the thing at that time in the
market, was founded on an hypothesis very favourable to the vendor, viz.: that
he certainly would have sold the article, if he had received it, at the ad-
vance of that day, and not retained it, subject to the contingency of a future
depression. But on the other hand, he must be content with the price of that
day, and cannot claim the benefit of a subsequent increase of value. Blyden-
burgh & Burns v. Welsh, 1 Baldwin’s Rep. 331-[Editor.]
Çirtuit Cottrf of tipt ºſmitti'ſ states,
VIRGINIA, MAY renº. 1812.
BEFORE
HoN, JOHN MARSHALL, Chief Justice of the United States.
JAMEs HoPKIRK, Surviving Partner of SPIERs, Bowman & Co.
v. M'Conico ET AL. -
On the 13th of December, 1790, a bond with two sureties was executed, the
condition of which was, that the principal obligor should collect debts due to
the obligees, and account faithfully for his transactions, as often as required,
and at least on the 1st of September of every year. On the 21st of October,
1799, the collector and principal obligor, rendered an account, showing a con-
siderable balance against him, and on the 15th of February, 1800, the collec-
tor executed a deed of trust to secure this balance, whereupon the time of
payment was extended by the obligees. This deed was made at the instance
of the obligees, and the obligees promised to surrender the bond, provided the
deed was recorded in the spring of 1800. The deed was delivered to the obli-
gees, who did not record it, till September 1800. In the stated account, the
collector debited the obligees with a legacy, bequeathed by one of the obligees,
to the son of the collector, the collector being the guardian of his son. The
collector's stated account afterwards turned out to be false and fraudulent, he
having received more money than he accounted for, and suit was brought to
charge the sureties. The property conveyed by the deed of trust was sold,
and the proceeds fell short of the amount appearing due by the stated account
to secure which the deed was made. Held:
1. That the promise to surrender the bond, on condition of executing the deed,
MAY TERM, 1812. 221
Hopkirk v. M'Conico et al.
and recording it in the spring, was still binding on the obligees, though the
deed, in point of fact, was not recorded until the fall, the failure to record it in
the spring, being the fault of the obligees, who had possession of it.
2. That the sureties were exonerated from all responsibility, for so much money
as appeared to have been collected, and to be due by the stated account, at the
date of the deed, the deed having been made with the assent of the obligees,
and indulgence having been extended to the collector, in consideration of the
deed. -
3. But the sureties were still bound for so much of the money of the obligees as
had been collected, prior to the execution of the deed, and not accounted for
by the collector in his stated account, inasmuch as the failure to render a true
account, was a breach of the condition of the bond.
Quære, if the sureties were not discharged from responsibility for the legacy, as
the credit was admitted by the obligees, knowingly.
THIS suit was brought by James Hopkirk, surviving partner
of Spiers, Bowman & Co., of Glasgow, to charge the sure-
ties of Christopher M'Conico, with the amount collected by
M*Conico, as the agent of the firm, and not paid to them. The
bill stated, that on the 13th of December, 1790, there was due
to the firm of Spiers, Bowman & Co., in Virginia, 4239,066 0s.
11%d., and the documents were placed in the hands of M*Conico,
who gave bond with Thomas Shore, and James Campbell, as
sureties, in the penalty of £20,000, conditioned faithfully to
collect the debts due to the firm, &c., and account fairly for his
transactions as often as required, and, at all events, on the first of
September of every year: that M'Conico had not performed the
condition of his bond. His sureties having evinced uneasiness,
he rendered an account, as he pretended, up to the 21st of
October, 1799, showing a balance in favour of the firm of
£3460 17s. 0#d. - -
In that account, he debited the company with a legacy left
by A. Johnson, to his son, (M*Conico being the guardian of his
son,) of £666 13s. 4d., the said A. Johnson, being a member of
the firm of Spiers, Bowman & Co. No objection to the credit
was made, but the son refused to assent to it.
To relieve the sureties as much as possible from this respon-
sibility, a deed of trust was accepted from M’Conico, to secure
the payment of this balance, bearing date the 15th of February,
222 VIRGINIA.
Hopkirk v. M'Conico et al.
1800. The balance not being paid, according to the terms of the
deed, the property was sold, and the proceeds amounted to
£3727 3s. 5d. The sale occurred on the 5th and 6th of March
and 6th of May, 1801. The firm were compelled to pay £490 10s.
7d., to clear the trust property from prior incumbrances, leaving a
balance due under the deed, on the 7th of January, 1802, of £871
9s. 10d. Besides this, it had been discovered, that M'Conico had
received large sums during his agency, with which the company
were not credited in his stated account. The bill concludes by
praying, that M'Conico might be compelled to state on oath, the
amount of his collections, and pay it to the plaintiff, or if he
was unable to pay, that his sureties should be held responsible.
In their answers, Conrad Webb, administrator of Thomas
Shore, one of the sureties of M*Conigo, and Campbell, the sur-
viving surety, admit the execution of the bond as stated in the
bill. They say, that on the 14th of March, 1798, they wrote
to Strange, the then agent of the plaintiff, urging him to bring
suit against M:Conico, and procure a settlement, as they would
not be liable for moneys collected by him after the 14th of May,
ensuing. This letter was among the exhibits in the cause. They
insist, that as further credit was given till March 1801, in con-
sideration of the deed, they were discharged from all further
responsibility. It was expressly stipulated too, that the bond
should be delivered up on the execution of the deed. They
deny that M'Conico had rendered a false account, or if
he did, that they are responsible. They deny, too, that the
deed of the 15th of February, 1800, was made by their ad-
vice, consent, or procurement. After its execution, Campbell
was informed of its execution, and expressed gratification that
the debt was secured, and the sureties exonerated. They
were consulted on the terms of sale on the 3d of March,
1801, but with the express stipulation, that nothing then done
should change the relations of the parties. The letter of M*Co-
nico of the 3d of March, 1801, requesting an alteration in the
terms of sale, and the assent of Strange, and the securities, with
a reservation that it should not operate to charge, or exonerate
the sureties, was filed as an exhibit in the cause. The defendants
MAY TERM, 1812. 223
Hopkirk v. M'Conico et al.
allege that the property, except the slaves, was sold for fifty per
cent. below its value, and if conveyed to them, that it would be
sufficient to satisfy the whole claim, and pray to be dismissed, &c.
M'Conico, in his answer, produced a letter from Strange, bear-
ing date the 13th of February, 1800, (just two days before the
execution of the deed,) in which he says—“I now enclose you
a deed of trust for you to execute, which please have done be-
fore such witnesses as will be able to attend the district court, in
the event of your being out of the way, so as you cannot ac-
knowledge it. As I am acting for others, it is my wish that it
should be completed and recorded next term, and I will then, if
that is done, relinquish the bond I hold.” The deed was exe-
cuted accordingly, and transmitted to Strange, on which he made
the following endorsement. “If $5000 be paid by the 15th of
September, property not to be sold sooner than October 21st,
1801, nor deed to be recorded before the district court for Sep-
tember 1801, if re-acknowledged.”
The deed was recorded in the fall of 1800, the $5000 not
having been paid by M*Conico.
MARSHALL, C. J.-This suit is instituted to obtain a settle-
ment of the accounts of Christopher M'Conico, as collector for
the plaintiffs, and to obtain payment from the other defendants,
who were his sureties, in a bond given for the faithful perform-
ance of his duty as collector. - -
The securities oppose this claim, because, in 1800, MºConico
gave to the agent of the plaintiffs a deed of trust on all his pro-
perty, to secure the balance then stated to be due, upon receiving
which, the plaintiffs, by their agent, gave him further time for
payment. The deed, too, was executed on the faith of a letter
promising to relinquish the bond, if the deed should be executed
according to the requisition of the letter. - .
This prolonged credit, it is urged, has entirely discharged the
securities. -
The two cases cited, the one from 2 Brown’s Ch. Ca.,(1) and
(1) Nesbit v. Smith, 2 Br. Ch. Ca., 579.-[Editor.]
224 VIRGINIA.
Hopkirk v. M'Conico et al.
the other from 2 Vesey, Jr.,(2) do certainly establish the princi-
ple for which the defendants contend. A stipulation, without
the knowledge of the surety, giving further time of payment
to the principal debtor, is held to discharge the surety.
But the plaintiff contends, that this case differs from those
which have been cited, because the bond, from its terms, not
being for the payment of a particular sum, at a specified time,
but of money as it should be collected, the obligation is a con-
tinuing obligation, and, therefore, not released by suspending
proceedings upon it. ‘.
The counsel for the plaintiff did not appear to rely much upon
this argument, as applicable to the debt, then known to be due,
and the Court cannot perceive its force. An action for any sum
of money actually collected, accrues as soon as it is collected ;
and if that action be suspended, such suspension appears to the
Court, to release the sureties with respect to the sum so sus-
pended, as completely as they would be released from the whole
bond, if the whole money had been collected. The Court feels
no hesitation in declaring the sureties discharged, for so much
as was known to be due, when the deed of trust was exe-
cuted.(3)
(2) Rees v. Barrington, 2 Wes., Jr., 540.-[Editor.]
(3) The principle upon which sureties are discharged, in consequence of any
new agreement between the creditor and principal debtor, seems to be, that the
remedies of the surety are thereby impaired, [Croughton v. Duval, 3 Call, 69,1
and the surety’s remedy is impaired, and the surety is consequently discharged,
if the creditor, after the debt is due, preclude himself from proceeding against
the principal for a moment. [Hill v. Bull, Gilmer, 149; Bennett v. Maule,
Gilmer, 328.] But if the agreement to grant indulgence is conditional, as that
the principal debtor should pay a portion of the debt on a specified day, and the
condition is never performed, the sureties are not discharged, for they are not
thereby deprived, by the act of the creditor, of any remedy against the principal.
Norris v. Crumney et al., 2 Rand., 323; Hunter’s Adm’rs. v. Jett, 4 Rand, 404.
So, where the agreement to give time, is without consideration, or upon valuable
consideration, with a stipulation that the creditor may proceed against the debtor,
if required by the surety, or where the agreement to give time is made, with the
knowledge and assent of the surety, in none of these cases is the surety dis-
charged. GREEN, J., in Norris v. Crumney, supra, Hunter’s Adm'rs. v. Jett,
MAY TERM, 1812. 225
Hopkirk v. M'Conico et al.
But a question of much more difficulty remains to be decided.
A much greater sum had been actually collected, than was
reported by the defendant M'Conico, or known by the agent
for the plaintiff to be in his hands. Are the sureties discharged
for this sum also On this question, I have felt great doubts,
nor are those doubts entirely removed.
I must suppose the settlement establishing the balance for
which the deed of trust was taken, to have been made on an
account rendered by M*Conico. If that account did not contain
a true statement of the sums in his hands, it was a false account,
and a fraud committed on the plaintiff. The agreement exhi-
bited by the deed would not, in the opinion of the Court, have
restrained the plaintiff from suing, immediately, to compel a fair
account, and payment of so much as had been collected and
fraudulently concealed. Much less could it have restrained the
sureties from instituting a suit in chancery, to compel a full
settlement and payment of what was really due. -
But it is urged, and urged with great force, that, by this
settlement, the sureties were lulled into perfect security, and
prevented from taking any measures for their own safety : That
this supineness was produced by the act of the plaintiff, and
supra; United States v. Nicholls, 12 Wheaton, 505; M:Lemore v. Powell
et al., 12 Wheat., 554. It is not sufficient that the surety may sustain no in-
jury by a change in the contract, or that it be made for his benefit. He has a
right to stand upon the very terms of his contract, and if he does not assent to
any variation of it, and a variation is made, it is fatal. Therefore, where an
official bond was given by a deputy collector of direct taxes, under an appointment
for eight townships, designated by name; and the instrument of appointment
specially referred to, was afterwards altered by the collector and his deputy, but
without the consent of the sureties, so as to embrace another township, the sure-
ties were not responsible for moneys subsequently collected, and not paid over.
Miller v. Stuart et al., 9 Wheat, 680; see also, United States v. Tillotson et al.,
1 Paine, 305. The cases decided in the courts of the United States, on the law
of principal and surety, are collated by Mr. Peters, in 3 Con. Rep. Sup. Ct. J.
S., 394, in a note, to which the reader is referred; see also, Baird v. Rice, 1 Call,
18; Bullitt’s Ex’ors. v. Winstons, 1 Munf., 269; Winston et al. v. Whitlocke,
5 Call, 435-[Editor.]
Vol. I.-2 F
226 VIRGINIA.
Hopkirk v. M'Conico et al.
ought to disable him from proceeding to fix any loss, afterwards,
discovered, on the sureties. The Court has felt the weight of
this argument, but it is opposed by others which possess still
greater influence. * - -
It has been already stated, that this settlement must be consi-
dered as having been founded on the account rendered by
M“Conico. This account is false and fraudulent. It is a breach
of the condition of the bond. That condition requires, that he
should account fairly for his transactions as often as he should
be required so to do; and at least, once in every year, namely,
on the first day of September. This condition is broken by the
rendition of a false account. The securities are liable for this
breach. The case is a hard one, but I cannot say, that they are
discharged from this liability by an agreement produced by the
fraud. --
The defendants rely also on the letter of Strange, of the 13th
of February, 1800. I concur with them in opinion, that the
promise to deliver up the bond, if the deed be recorded in the
spring of 1800, does not lose its obligation by the postponement
of recording the deed until the fall of that year, because the
postponement was made by the plaintiff’s own agent. He has
himself released the condition of his promise, and the promise
remains absolute. --
On this letter, the sureties contend that they are discharged
at law, and as they are not bound in equity further than at law,
this suit cannot be sustained against them. They are said to be
discharged at law, because if suit was instituted at law against
them on the bond, accord and satisfaction might be pleaded,
and would bar the action.
If the sureties are correct in their law, there is an end of the
case. But the Court is not of opinion that accord and satisfac-
tion would bar this action. To this plea it might be replied,
that the accord was obtained by the fraud of M:Conico, and, as
at present advised, I think that a verdict found on such an issue
for the plaintiff, would authorise a judgment. If the defendants
MAY TERM, 1812.
2
2
7
Hopkirk v. M'Conico et al.
chose to demur to the replication, it is believed that the demur-
rer would be overruled, and the replication sustained.
If this be correct, the sureties are not discharged at law. The
question is, whether a court of equity will relieve against the
bond, or decree against the defendants, or leave the parties to
their action at law 2 I should incline to the latter course, were
it not for the obvious advantage which the settlement of such
an account as this, before a commissioner, has over a settlement
before a jury.
With respect to the sum for which M*Conico took credit as
the guardian of his son, I rather incline to the opinion, that the
securities must be discharged from it, because the agent for the
plaintiff admitted it knowingly. This, however, would seem to
be a question between the two securities, because one of them is
security to the guardian’s bond.(2)
DECREE.—That the defendants, Conrad Webb, as administra-
tor of Thomas Shore, and James Campbell, are exonerated by
the conduct of the plaintiff’s agent from all responsibility, for
so much of the money collected by Christopher M'Conico, as
was known to that agent to have been collected, when the deed
of trust of the 15th of February, 1800, was executed : but that
the said sureties remain bound for so much as had been actually
collected, and not accounted for by M*Conico, and the account
is referred to a commissioner, to state the sums which had pre-
viously been collected by M*Conico, and were not contained in
any account rendered by him to the plaintiff or his agent.
(2) “There was formerly a doubt on the question, whether a legacy due to
minors could be safely paid by the executor to the father of the legatees, but the
opinion latterly has been that the payment is at the risk of the executor. Dagley
v. Tolferry, 1 P. Wms, 285; 1 Eq. Cas. Abr. 300, pl. 2; Cooper v. Thornton, 3
Brown’s Ch. Rep. 96. In all these cases, the question seems to have been,
whether a legacy to a minor could safely be paid to the father, as father or natu-
ral guardian merely. It is no where denied that a father duly appointed as guar-
dian by the competent authority, is authorised to receive legacies, and distribu-
tive shares belonging to his ward. KENT, Chancellor, in Genet v. Tallmadge, 1
Johns. Ch. Rep. 3. See also Morrell, &c. v. Dickey, Id. 153; Williams, &c. v.
Storrs, &c. 6 Johns. Ch. Rep. 353.” 2 Robinson's Practice, 154, 155.
22s VIRGINIA,
*
STRODEs v. PATTon ET AL.
Before Hox. JOHN MARSHALL, Chief Justice of the United States.
An executor or administrator may submit any account of his testator or intestate,
to arbitration, and if he adopts the award of the arbitrators, the award is bind-
ing, not only upon the executor, or administrator, but upon creditors of the
estate which he represents. -
Quære, if such award be glaringly unjust, may not the executor, under certain
circumstances, be made personally responsible 4 and may not items unknown
to the executor, and not acted on by the referees, be set up either by the
executor himself, or by the creditors, notwithstanding the award of a general
balance # -
If the party, in whose favour a general balance has been awarded, relies upon
the award in his bill, and the other party in his answer, neither contests it, nor
alleges any claim on the part of the estate which he represents, which had not
been submitted to, and decided by the referees, the award must be considered
as a complete adjustment of the affairs of the two estates up to the time when
it was given. .
The sale of a final settlement certificate by an administrator is valid, and if such
sale was necessary in a course of administration, and was for the highest
market price, the administrator will be protected, though it sold greatly below
its nominal value. It could only be made available by a sale, as payment could
not be coerced by suit, as in the case of a bond.
A sale of land was made under a decree of a court of chancery, by commis
sioners appointed for that purpose. The tract was composed of three contigu-
ous tracts, purchased by the defendant's intestate of three different individuals.
The commissioners exhibited the title-papers at the sale, expressing a certain
quantity, and sold the land, as directed by the decree, by the acre, undertaking,
however, neither for quantity nor title, and declaring that the purchaser must
buy-at his own risk. A judgment was obtained against the purchasers on their
bond, and they came into equity to enjoin this judgment, on the ground, that
the defendant’s intestate was not entitled to, nor ever in possession of a single
acre, under one of the three deeds; that a certain portion of another tract had
been surrendered by the representatives, previous to the sale, in an adjustment
of boundary ; and that the third tract was also deficient. Held: That the
judgment for the purchase-money ought to be enjoined, to the extent of the
deficiency in the land.
Quære, if the land sold so far below its value, as to justify the court in the opi-
nion, that the purchaser took into his estimate the deficiency in the quantity,
should not the bill be dismissed, unless the purchasers would consent to vacate
the contraet 3
MAY TERM, 1812. i. 229
Strodes v. Patton et al.
A DECREE was rendered in this Court, in favour of the
representatives of John Backhouse, against Robert Patton, ad-
ministrator with the will annexed, of James Hunter, deceased,
appointing the said Patton and others, special commissioners,
with directions to any two or more of them, to sell, on a credit
of twelve months, at public auction, all the real estate whereof
the said Hunter died seized, which remained unsold by his exe-
cutors, for certain purposes set forth in the decree. Among
other lands sold under this decree, was “the marsh tract,” so
called, in the county of Fauquier, of which the plaintiffs in this
present suit became the purchasers. The commissioners pro-
duced on the day of sale, two several deeds, made to James
Hunter, in his lifetime, purporting to convey 500 acres, and
200 acres of land respectively ; and also a patent for 420 acres
of land, granted to Reuben Wright, in April 1775, and after-
wards conveyed by Wright to Hunter. These several parcels
of land, containing together, according to the purport of the
deeds, 1120 acres, composed “the marsh tract,” purchased at
the commissioners’ sale, by the two plaintiffs, John and Thomas
Strode, for $5 per acre. The commissioners declared, on the
day of sale, that they acted merely as such, and refused in any
manner, to become personally responsible for quantity or title,
but should sell the lands, according to the tenor of the decree,
and the deeds, and patent, for the quantity expressed on the
face of each, by the acre. John and Thomas Strode, executed
their bond for the purchase-money of the land bought by them,
and after the expiration of the period limited for its payment,
suit was instituted against them, and judgment recovered.
In the year 1807, pending a suit in the court of chancery, for
the Richmond district, between John Strode, one of the present
plaintiffs, as administrator of Abner Vernon, deceased, (who
had qualified and acted as the executor of James Hunter, de-
ceased,) and one of the present defendants, Robert Patton, as
administrator, with the will annexed, of James Hunter, deceas-
ed, the parties in the suit agreed to submit all the matters in
controversy between them, touching the estates of their intes-
230 VIRGINIA.
Strodes v. Patton et al.
tates, to the arbitration of Robert Hening, and John W. Green,
who made their award on the 5th day of May, 1807, awarding
a general balance due from Hunter’s to Vernon’s estate, of
302361 1s. On the 27th day of June, 1808, the court of chan-
cery, approving this award, rendered a decree in pursuance
thereof, against Hunter’s administrator, to be satisfied out of
the unadministered assets in his hands to be administered.
This present suit was instituted, for the purpose of enjoining
the bond given by the plaintiffs to the defendants, above recited,
and for the purpose of obtaining a decree against the estate of
James Hunter, for the amount due to the plaintiff, John Strode,
as administrator of Vernon, as ascertained by the award of Hen-
ing & Green, and for other smaller sums; and also, for money.
alleged to be due from Hunter’s estate, to the plaintiff, John,
in his own right. -
The injunction was asked, partly on account of an alleged
deficiency in the lands purchased at the commissioners’ sale, and
partly on account of the debts, which have been stated.
After the answer of the commissioners, and the administrator
of Hunter, were filed, an account was ordered by consent of par-
ties, and the cause now came on to be heard on exceptions to the
report of the commissioner. Those exceptions are fully stated
in the following opinion.
MARSHALL, C. J.-1. The first exception is general, and will
therefore be passed over.
2. That the commissioner set aside the award of Hening &
green. -
This exception is not entirely and literally true in its state-
ment of the fact. The commissioner did not set aside the award
of Hening & Green. He gave the plaintiff credit for the amount
of that award, and the defendants have excepted to this item of
the report. |
The commissioner, however, has debited the plaintiff, in the
account of his intestate with James Hunter’s estate, with several
sums supposed to have been omitted by the persons by whom
MAY TERM, 1812. 231
Strodes v. Patton et al.
the award was made, and by doing so, has, in fact, overturned
the award, and has made the representative of Vernon, a debtor,
instead of a creditor, of Hunter’s estate.
This exception involves an inquiry into the validity of the
award, and into the power of an executor, or administrator, to
submit any question respecting the estate he represents to arbi-
tration.
It has been laid down, in broad terms, that an executor has
no power to submit any account of his testator to arbitration,
and that, as to creditors, a submission by him is an absolute nullity.
I know not where this law was found. The gentleman who
advanced it, did not produce a single dictum in support of it,
nor have I been able to find any case in which it has been so
decided.
No reason can be perceived for such a rule. The executor has
a right himself to settle the account; and if he submits it to the
settlement of others, and adopts their award, he is as much con-
cluded by it, as if he himself made the settlement.
The executor necessarily acts for the creditors; for as his act
binds the fund to which creditors may have recourse, they are
bound by his act, where it is a fair one.
If an award be glaringly unjust, I will not say, that the execu-
tor may not, under certain circumstances, be made personally
responsible, nor should I feel much difficulty in allowing items
unknown to an executor, and not acted on by the referees, to be
set up, either by the executor himself, or by the creditors, not-
withstanding the award of a general balance. That such an
opinion would be affirmed by a superior tribunal, is far from being
certain. It is, however, my opinion. But to go beyond the
award, either to charge the administrator, or the person who
claims under it, the award itself must be controverted by the
pleadings in the cause, and the objections to it distinctly stated.
In the present instance, this has not been done. The bill relies
on the award, and the answer neither contests it, nor alleges any
claim on the part of Hunter’s estate, which had not been sub-
mitted to and decided by the referees. In such a case, the
232 f VIRGINIA.
Strodes v. Patton et al.
award must be considered as a complete adjustment of the affairs
of the two estates, up to the time when it was given.
3. Upon this reasoning, the third exception must also be sus-
tained. This exception refers to the sale of a final settlement
certificate, by Vernon, as executor of James Hunter, much below
par, which is alleged by the plaintiff to have been sold for the
highest market price, and that the sale was necessary in a course
of administration. The plaintiff farther insists, that all inquiry
with regard to it is precluded by the award. Upon this excep-
tion, however, it may not be improper to add, that if the sale of
the certificate was really necessary in a course of administration,
there can be no doubt of the power of the administrator to sell
it. It cannot be tendered in payment, and can only be converted
into specie by a sale. In this, it differs from a bond, which may
be put in suit, and payment coerced. An executor, however,
ought to be well satisfied of the necessity, before he sells a cer-
tificate at a price greatly below its nominal value.
Upon the point of necessity, no evidence is furnished, except
what may be found in the commissioner’s report. He states
that the sale was not necessary, and that no account of it was
laid before the arbiters. These facts would be very material, if
the pleadings were such as to bring the award, or the accounts
existing before its rendition, into controversy.
The other exceptions are chiefly to debits against Abner
Vernon, in his account with Hunter’s estate, for debts due to
that estate, and supposed to have been lost through the negli-
gence of Abner Vernon, and for payments made on account of
that estate, as is supposed, improperly.
The testimony on which these charges are made, is not laid
before the Court. It might, perhaps, be taken as sufficient to
support them, since no exception was made to it before the
commissioner. But this inquiry is also precluded by the state
of the pleadings. *
The exceptions are sustained, and the report set aside.
The equity suggested in the bill, in consequence of a de-
ficiency in the quantity of land sold, will next be considered.
MAY TERM, 1812. 233
Strodes v. Patton et al.
The land was sold under a decree of this Court, directing
commissioners, therein appointed, to sell the lands whereof James
Hunter died seized and possessed, and which remained unsold
by his executors. r
Acting under this decree, the commissioners sold a tract of
land called the marsh tract, which had been purchased of three
different persons by James Hunter. At the sale, they exhibited
the title papers, which expressed the quantity of 1120 acres, and
sold the land contained in those deeds by the acre; declaring,
however, that they undertook neither for quantity nor title, and
that the purchaser would buy at his own risk.
It is now stated, that under one deed, that made by Reuben
Wright, for 420 acres, James Hunter was not entitled to, nor
ever in possession of, a single acre. ,
That 39 acres, part of the land conveyed by a different person
to Hunter, were surrendered by one of the executors, in an
adjustment of boundary made with one Wyckoff. -
That there is also a deficiency of 50 acres for land under the
third deed. .
If the land sold had existed, but had not measured 1120 acres,
the plaintiff admits that he would have had no right to apply for
the interposition of this Court. By consent, the quantity speci-
fied in the deeds was substituted for the quantity which the
tracts might contain in survey, and the survey was dispensed
with. But had it been known to this Court, that nothing was
held under Wright’s deed, this Court would not have authorised
a sale of it. In fact, the terms of the order do not authorise
such a sale. Had the fact been known to the commissioners,
they could not have offered it for sale. -
It is, then, a sale made without authority, or by mistake.
Had the truth of the case been reported to this Court before a
conveyance, the justice of the case would have imperiously
demanded, that the mistake should be corrected, either by
setting aside the sale altogether, or so much of it as was impro-
perly made, as circumstances might require. A court could not
tolerate such an imposition, practised, in fact, by itself.
VoI. I.-2 G.
234. VIRGINIA.
Strodes v. Patton et al.
The conveyance having been made, the doubt is, whether the
relief prayed for shall be granted unconditionally, or on condi-
tions. If it had appeared that the land sold so far below its
value, as to justify a suspicion that the purchaser took into
his estimate this deficiency in the quantity, I should be much
inclined to require that things should stand as they are, unless
the purchaser would consent to vacate the contract. But this
being neither alleged nor proved, cannot be presumed. The
Court, therefore, will enjoin the bond given for the purchase
money, to the extent of the deficiency in the land.
DECREE.—1st. That the report ought to be set aside. 2d. That
the plaintiffs are entitled to a deduction as to so much of the
purchase-money for the land sold them by the defendants, as is
equal to the deficiency in the quantity of the said land. One of
the commissioners of the Court, is ordered to state and report to
the Court, the amount and nature of the deficiencies in the said
lands, with the comparative value of such deficiencies at the
time of the sale, and the amount which ought to be deducted
from the purchase-money on account of those deficiencies, agree-
ably to the foregoing opinion. Leave given to the defendants
to amend their answer in the cause, and to the representatives of
John Backhouse, who claim to be creditors of James Hunter, to
file their cross bill in this suit, and to assert any claim they may
have against any of the parties.
Çirttlit Cottrf of the Jºſmittī, gºtiates,
VIRGINIA, NOVEMBER TERM, 1812.
BEFORE t
HoN. JOHN MARSHALL, Chief Justice of the United States.
CASE of THE SHIP ADVENTURE AND HER CARGo.
The Adventure, a British ship, with a cargo of British goods and merchandise,
was captured by a French frigate on the high seas, pending a war between
France and Great Britain, and was given by the commander of the French
frigate, to the captain and crew of an American vessel which had been pre-
viously, on the high seas, captured, plundered, and burnt, by the same frigate,
and who were detained on board of the French frigate, when the Adventure was
captured. The American sailors brought the ship and her cargo into the port
of Norfolk, in the state of Virginia, while the laws interdicting all commercial
intercourse between Great Britain and the United States were in force, which
declared it unlawful to import into the United States, goods, wares, and
merchandise, of British growth and manufacture, “from any foreign port or
place, whatever,” and prohibited their introduction under pain of forfeiture
and other severe penalties. Held: That this was no infraction of the non-
intercourse laws, the ocean, which is the great highway of nations, not being
a foreign “port or place” within the meaning of those laws. To constitute a
violation of the law, the British goods, &c., must have been brought from some
port or place within the dominions of some foreign potentato or power.
236 VIRGINIA.
The Ship Adventure and Cargo.
APPEAL from the district court of Norfolk. The fibellants
filed their libel in the district court of Norfolk, in admiralty,
praying that the ship Adventure and her cargo should be con-
demned and sold for their benefit, or, that if it should appear that
the same, or any part thereof, ought to be restored to any person
or persons, as the former owner or owners thereof, then that the
same might be restored upon the payment of such salvage as by
law ought to be paid for them. f
The attorney for the United States also filed a claim on be-
half of the United States, claiming the ship and her cargo as for-
feited to the United States, the Adventure being a ship, own-
ed by British subjects, and having brought into the port of
Norfolk a cargo composed of goods, wares, and merchandise, of
the growth, produce, or manufacture, of Great Britain, in con-
travention of the act interdicting commercial intercourse between
the United States and Great Britain. *
The counsel for the libellants and the United States agreed the
following case as the one arising under the evidence in this cause.
The libellants in this cause were the master, supercargo, mates,
mariners, and cook, of and belonging to, an American brig, called
the Three Friends, which brig, navigated by the libellants, sailed
from the port of Salem, in the state of Massachusetts, on the 11th
day of October, 1811, laden with a valuable cargo, and bound on
a voyage from thence to the port of Pernambuco, and to any other
port or ports on the coast of Brazil. The Three Friends and
her cargo, at the time of her sailing from Salem, were the pro-
perty of Pickering Dodge, a citizen of Massachusetts. The brig
proceeded on her destined voyage until the 14th day of Novem-
ber, 1811, when, having arrived in latitude 7° 58' north, and
longitude 25° west, of Greenwich, on the high seas, she was fallen
in with and captured by a French frigate, called the Medusa,
which frigate was accompanied by another French frigate called
the Nymph. The crews of these two frigates, by command of
their commodore, removed the libellants from the Three Friends
on board of the Medusa, and then burnt and destroyed the brig
and her cargo. After this event, the libellants were kept and
NoveMBER TERM, 1s12. 237
The Ship Adventure and Cargo.
detained on board of the Medusa until the 21st of Novem-
ber, 1811, when, in latitude 21°29' north, and longitude 32° 20'
west, from Greenwich, on the high seas, the Medusa fell in with
and captured the ship Adventure, which is libelled in this cause.
The French captors took, and made prisoners of war, of all the
crew of the Adventure, took away such part of her cargo as they
wished, and all her papers, and on the following day the com-
mander of the Medusa made an unqualified donation to the libel-
Hants, at their request, of the ship Adventure, with the residue of
her cargo. The libellants, after receiving the ship, proceeded in
her for some port of the United States, and although too few in
number to be equal to the task of navigating properly so large a
ship, yet, after sustaining great labour, damage, and fatigue,
and after a long and tempestuous voyage of 71 days, they
at length arrived in the port of Norfolk, in Virginia, on the 1st
of February, 1812. The Adventure, at the time of her capture
by the Medusa, was a British ship, furnished with letters of
marque and reprisal, armed with twelve guns, and navigated by
seventeen seamen, and, together with her cargo, belonged to some
British merchants residing in Liverpool, whose names are un-
known, and was then bound on a voyage from Liverpool to the
British island of St. Christophers, in the West Indies. At the
period of the capture, open war existed between France and Great
Britain, and the cargo of the Adventure, which was brought into
the United States, consisted entirely of articles of the growth
or manufacture of Great Britain. -
The district court decreed, “that the said ship, Adventure, her
tackle, apparel, and furniture, together with the cargo, brought in
the said vessel, into the port of Norfolk, within the district of
Virginia, be forfeited for entering a port of the United States in
violation of the “act to interdict the commercial intercourse be-
tween the United States and Great Britain and France, and their
dependencies, and for other purposes,’ and of the act supple-
mentary thereto:” and from this decree the libellants appealed to
this Court.
The following opinion was delivered by
23s *. VIRGINIA.
The Ship Adventure and Cargo.
MARSHALL, C. J.-The only question made at the bar in this
case is :—Are the ship Adventure and her cargo, forfeited to the
United States, as having contravened the act interdicting com-
mercial intercourse between this country and Great Britain P(1)
The Adventure was a British ship, captured by the Medusa,
a French frigate; and presented to the libellants, who were the
master, supercargo, and mariners, of the American brig Three
Friends, which brig, with her cargo, had been previously cap-
tured and burnt by the same frigate. The Adventure was navi-
gated into the port of Norfolk, and there libelled by the sailors
to whom she had been given. The United States filed their
claim to the vessel and cargo as forfeited.
The clause of the law supposed to be infringed, is in these
words:—“Nor shall it be lawful to import into the United States,
or the territories thereof, from any foreign port or place what-
ever, any goods, wares, or merchandise whatever, being of the
growth or manufacture of Great Britain or Ireland, &c.”(2)
The United States contend, that the Adventure and her cargo
have incurred the penalties of this act. The libellants, that the
case is not within the act. - r . '
In argument, the impropriety of inquiring in this place into
the policy of the law, and the legal principle that penal laws
should be construed strictly, have both been made the subjects
of animadversion.
On these observations I will only say, what has been often
before said in substance from this place, that the wisdom or folly
of any particular system, is for the consideration of the legislature,
not of the Court; and when the policy of the law is mentioned by
a judge, I always understand him to use the term in reference to
the object of the legislature, and to the means by which that
object is to be effected, as disclosed in the words they have
employed. f
The maxim, that penal laws are to be construed strictly, has
(1) Act of March 1, 1809. 2 Story’s Laws U. S., 1114–20,-[Editor.]
(2) $ 4. [Editor.] i -
NOVEMBER TERM, 1812. 239
The Ship Adventure and Cargo.
never been understood, by me at least, to imply, that the inten-
tion of the legislature, as manifested by their words, is to be
overruled; but that in cases where the intention is not distinctly
perceived, where, without violence to the words or apparent
meaning of the act, it may be construed to embrace or exclude
a particular case, where the mind balances and hesitates between
the two constructions, the more restricted construction ought to
prevail; especially in cases where the act to be punished is in itself
indifferent, and is rendered culpable only by positive law. In
such a case, to enlarge the meaning of words, would be to extend
the law to cases to which the legislature had not extended it,
and to punish, not by the authority of the legislature, but of the
judge.
The counsel for the United States contend, that this case is
within the plain letter of the law ; and, to prove their position,
have gone into a critical analysis of the sentence. i
Although the disquisition is a dry one, and the arguments
may appear nice, perhaps trivial, such as ought not to determine
a question of property, it is deemed, by the Court, to be one
which is required by the character of the case. This part of
the inquiry seems to turn on the meaning of the words “foreign
place,” as they stand in the act of congress. For the goods
must be imported from a “foreign port or place,” to come
within the description of the law.
The counsel for the claimants take these words in their most
enlarged sense, and suppose that any place on land or water,
within or without the dominion of any foreign power, is a
“foreign port or place,” within the meaning of the act.
It is worthy of remark, that this broad construction refuses
to the words under consideration, any operation whatever.
Expunge them, and the ambiguity of the sentence is removed.
It means all that is required. This will be perceived, by read-
ing the sentence without them, “Nor shall it be lawful,” &c.
If the act was drawn on reflection : if the legislature weighed
the words they employed, it must have been perceived, that the
words “from any foreign port or place whatever,” could have
240 * VIRGINIA.
The Ship Adventure and Cargo.
—r—
...”
no other operation, than to limit the broad meaning which the
sentence without them would necessarily require. They were
not wanting to exclude cases of goods, brought from one Ame-
rican port to another, because such an importation, is not an
importation into the United States. The words in question then,
operate restrictively, or they operate not at all. Unquestiona-
bly, redundancy in language, especially in legislative acts, is
often seen ; and, therefore, it would not be admissible to over-
rule the intention of the legislature, rather than pronounce a
member of a sentence entirely useless. But in a case, where
the intention is involved in absolute uncertainty, the rule of
construction which would give some effect to every part of the
sentence, is not to be entirely disregarded ; especially, if, as in
this sentence, the words appear to have had some importance
attached to them by the legislature. It may also be noticed, that
the same words are used frequently in the same section,-always
denoting some place within the dominion of a foreign potentate.
In all these cases, the word “place” is, in terms, limited to
some spot within the territory of a foreign nation. This may
aid in showing, that the place, in the mind of the legislature,
was some place, not in air, or in water, but within the power
and jurisdiction of a foreign state, which was capable of being
resorted to, for the purposes of commerce. So, subsequently,
in the same sentence, the words are used in the same restricted
Sen Se.
It certainly does not weigh much, yet it is something in de-
termining the sense of an ambiguous phrase, that the word
“place,” throughout the law, is coupled with the word “port,”
or the word “country,” by the disjunctive conjunction “or;”
and a “port,” or a “ country,” is necessarily within the limits
of some state, or capable of being within those limits. This
association would seem to indicate, that the word “place,” also,
is used in relation to a foreign territory; and is introduced, be-
cause, otherwise, the law might be evaded, by taking in a cargo
at some place, not established as a port. º
But what weighs more than either or all of these arguments,
NOVEMBER TERM, 1812. 241
The Ship Adventure and Cargo.
is this. The broad navigable ocean, which is emphatically and
truly termed the great highway of nations, cannot, in strict pro-
priety of language, be denominated “a foreign place.” The
words are said to be used to denote any place, not belonging to the
United States. But the sea is the common property of all na-
tions. It belongs equally to all. None can appropriate it ex-
clusively to themselves; nor is it “foreign” to any.
If, then, the legislature designed to prohibit the importation of
goods, acquired as was the cargo of the Adventure, they would
either not have introduced the words foreign “port or place”
into their law, or they would have added other words adapted
to such intention. It cannot be believed, that the legislature
would have designated, by the term “foreign,” a place in which
the United States claim equality of dominion with other sove-
reigns.
If this case comes within the act, the American sailors who
have availed themselves of this fortunate occasion, as they deemed
it, to return to their country, will be liable to a penalty of treble
the value of the goods on board the vessel.(3) Could any court,
or ought any court, to strain the meaning of words, in order to
give such a judgment 2
It is contended that the word “import” is co-extensive with
the words “bring in.” •
I am not prepared to controvert, or absolutely to admit, this
proposition. But let it for the present be conceded. It will be
perceived, that the argument which has been used allows that
broad meaning to the word “import,” and is founded on the
meaning of the words “foreign port or place.”
But let us see how far we are unavoidably carried by estab-
lishing this construction of the word “import.”
Suppose the captain of the Medusa, instead of giving the Ad-
venture to the American sailors, had brought her, with her cargo,
into an American port, as a prize. Would the penalties of the
law have been incurred 2 Are gentlemen prepared to give this
Vol. I.-2 H
(3) $ 5.-[Editor.]
242 - - VIRGINIA.
The ship Adventure and Cargo.
construction to the act 2 If they are not, the exception of such a
case must be supported, either by the technical meaning of the
word “import,” or by allowing to the words “foreign place”
the meaning which the court has given to them.
I will not put the case of a prize brought in by an American
cruizer, because the war, and the consequent measures of govern-
ment, may be considered as so far repealing the act of congress.
But it is said, that if goods may be introduced as they have been,
the law would become a dead letter, and the French flag would
cover a prohibited trade, under the pretext of capturing British
vessels and bestowing them on American sailors. -
§ This fraud presupposes a combination between the cruizer
under the French flag, the British vessels to be captured, and the
owners of those American vessels and cargoes, which must be
previously destroyed, in order to furnish a case for the gift of a
British vessel and cargo. This machinery would be too expen-
sive to render the fraud so profitable as to be worth pursuing.
In addition to the certain loss of the American vessels and cargoes
there would be danger of detection, in which case the penalties
of the law would be incurred.
But if, notwithstanding these safeguards, the mischief should
grow to a size worthy of attention, the legislature can at any
time furnish the correction, by expressing its will on that subject.
I cannot admit, that this importation is opposed more to the
spirit and intention, than it is to the letter of the law.
If I look either into the act itself, or into the contemporaneous
history of my country, I am informed, that the object of the
legislature was, by refusing the American market to British man-
ufactures, to affect the manufactures, and through them the gov-
ernment. Therefore, the importation of British manufactures,
not only from Britain, but from any foreign port or place what-
ever, was prohibited : for such foreign port or place might be
made the medium through which the trade should be carried on.
But bona ſide belligerent captures cannot be made the medium
of such a trade. Nor would the admission of goods, so cap-
NOVEMBER TERM, 1812. 243
The Ship Adventure and Cargo.
tured, into the United States, benefit or relieve the British manu-
facturer or nation. - -
I think the case not within the act, and, therefore, that the
sentence ought to be reversed and the subject condemned, and
adjudged to the libellants.(4)
(4) From the decree which was pronounced by the circuit court in this case,
in conformity with the above opinion, the United States appealed to the supreme
court, and that Court reversed the decree of the circuit court. See 8 Cranch, 221 ;
3 Con. Rep. Sup. Ct. U. S. 93. It will be perceived from the following analysis
of the opinion of the supreme court, that the opinion of the Chief Justice, as far
as it went, is entirely supported by it; but that the decree was reversed upon a
new and distinct ground which was not touched in the circuit court.
The supreme court said, that the most natural mode of acquiring a definite
idea of the rights of the libellants in the subject matter, would be, to follow it
through the successive changes of circumstances by which the nature and extent
of the rights of the parties were affected, viz.: the capture, the donation, the ar-
rival in the United States, and the state of war.
1st. The capture. As between the belligerents, the capture produced a com-
plete divestiture of property. . It left nothing in the original British owner, but a
mere scintilla juris, the spes recuperandi. -
2d. The donation. Upon the donation, however absolute the right of the
captor, or unqualified the gift, the donee could acquire no more than what was
consistent with his neutral character to take. He could be in no better situation
than a prize master navigating the prize, in pursuance of orders from his com-
mander. - - w
3d. The arrival in the United States. The vessel remained liable to British
capture on the whole voyage, and on her arrival in a neutral territory, the donee
sunk into a mere bailee for the British claimant, with those rights over the thing
in possession, which the civil law gave for care and labour bestowed upon it. By
the importation of the vessel, under the peculiar circumstances of the case, no
forfeiture attached under the non-intercourse laws. The ship was the plank in
the shipwreck, the tabula in naufragio ; and it came within the description of
property cast casually on our shores. To have carried the vessel infra præsidia
of the enemy, unless forced by necessity to do so, would have been an unneutral
act. But by bringing her into a neutral port, where the original right of the cap-
tured would revive, and might be asserted, the libellants did an act exclusively
resulting to the benefit of the British claimant. The libellants, therefore, were
entitled to salvage: and in the absence of any express rule for ascertaining the
amount, and under the circumstances of this case, they should be allowed; in
different proportions which were ascertained by the Court, one half of the amount
of sales of the cargo, viz.: $8000.
4th. The war. As war between the United States and Great Britain intervened,
244 VIRGINIA.
Scott v. Jon Es.
Before Hon. John MARSHALL, Chief Justice of the United states.
J. S. executed his bond to T. M. R. who assigned it to J. At the time of the
assignment, there was a running account between J. S. and T. M. R. The
assignee instituted suit against the obligor, and some time afterwards, but
before judgment, upon a settlement of accounts, between J. S. and T. M. R.,
there was found a balance due from T. M. R. to J. S., which was acknowledged
at the foot of the account, by T. M. R., who promised to pay it three years
after the date of the settlement. Held: That this claim cannot be used as an
offset against the bond, against the assignee, either at law, or in equity.
A debt, payable in future, cannot be pleaded in bar of a present demand.
The obligor in an assigned bond, who has equitable discounts against it, ought to
inform the assignee of his claims, when notice of the assignment is given to him.
THE following opinion of the Court, presents a full state-
ment of material facts : . - . • ,
2
MARSHALL, C. J.-On the 7th of October, 1776, Peter Field
Trent, Alexander Trent, John Harris, John Scott, and William
Gay, executed a bond to T. M. Randolph, for six hundred
pounds, payable on the 25th of April, 1783. Peter Field Trent
was the principal, and the other obligors, his sureties.
On the 1st of May, 1789, T. M. Randolph assigned this bond
to W. Jones. -
the British claimant could not interpose his claim for the residue, flagrante bello.
But as the property was found here, at the declaration of war, it must stand on
the footing of other British property similarly situated, and might be claimed,
after the termination of the war, unless previously confiscated by legislative en-
actments. .
The supreme court, therefore, decreed and ordered that the decree of the circuit
court be reversed: that the costs and charges be paid out of the proceeds of sale :
that one half of the balance be adjudged to the libellants, and that the balance
be deposited in the Bank of Virginia, to remain subject to the future order of the
court. º, -
After the termination of the war, the original British owners of the Adventure
and her cargo preferred their claim, duly authenticated, in the circuit court, and
the balance remaining to the credit of this cause in the Bank of Virginia, was
paid to them.—[Editor.] -
NOVEMBER TERM, 1812. 245
Scott v. Jones.
From 1763 to 1788, there was a running account between T. M.
Randolph and the obligor J. Scott, which was settled on the 2d of
September, 1791, when T. M. Randolph acknowledged himself
to owe J. Scott £360 9s. 2d., to be paid in three years. The
acknowledgment is at the foot of the account, and is for the
precise balance, but does not in terms refer to the account.
On this bond, a suit was instituted by the assignee, and the
writ was executed to November 1790, and a judgment was ren-
dered thereon, against John Scott, one of the obligors, in May
or November 1794.
For the purpose of using his claim against T. M. Randolph,
as a discount, J. Scott placed the acknowledgment which has
been mentioned in the hands of counsel, who, by a mistake,
which is stated in his affidavit, omitted to produce it at the trial
of the cause. -
In December 1795, J. Scott obtained an injunction to this
judgment, and the case now comes on for a final hearing.
The failure to produce this acknowledgment at the trial, is
accounted for in so satisfactory a manner, that it is admitted, that
the discount may now be used, if the plaintiff in equity could
have availed himself of it at law.
The first question, therefore, to be decided is, Could John
Scott have used this acknowledgment of T. M. Randolph, as a
discount at law P
The act of assembly, under which the assignee sues, obliges
him to allow all just discounts, not only against himself, but
against the assignor, before notice of the assignment was given to
the defendant.(1) -
Was this a just discount, when notice of the assignment was
given to the obligor?(2)
(1) I R. C. of 1819, ch. 125, § 5, p. 484. Tate's Digest, 30.—[Editor.]
(2) In an action by the assignee, against the maker of a promissory note, he
cannot set off against it a bill of exchange, for which the assignor is responsible
to him, unless it appear that he was the owner thereof, before he received notice of
the assignment. Ritchie & Wales v. Moore, 5 Mun. 388. Though the assignee
of a bond, for valuable consideration, and without notice, takes it, subject to all the
equity of the obligor, [Norton v. Rose, 2 Wash. 233. Pickett v. Morris, 2 Wash.
255.] and is in no better situation than the assignor, [Stockton v. Cook, 3 Munf.
246 VIRGINIA.
Scott v. Jones.
Notice was given, if not sooner, by the service of the writ,
which was previous to November 1790, and, consequently, prior
to the settlement of this account with T. M. Randolph. Could
the items of that account have been substantiated without the
acknowledgment of T. M. Randolph, it might have been used
as an offset in the suit at law, had the items not have been barred
by the act of limitations ; but by making that settlement, and
giving to T. M. Randolph credit for three years, the applica-
bility of this account as an offset against the bond in the hands of
the assignee seems to be taken away. A debt payable in future
cannot be pleaded in bar of a present demand ; and, therefore,
when this acknowledgment was given, it could not have been
set up against the bond. -
The credit given upon it seems to prove, that it was the in-
tention of the parties not to oppose this account to the bond,
which, at that time, was the property of the assignee. On no
other principle could a credit have been given. The debt from
Scott, upon the bond, being due at the time, if the right to op-
pose the account to the bond had been contemplated to be re-
served, no credit could have been desired or given. It seems to
have been a part of the stipulation, by which an acknowledg-
ment of the account, so as to remove the bar created by the act
of limitations, was obtained. It may well be doubted, whether
this acknowledgment can operate against a person previously the
assignee of the bond, so as to revive a claim against him. But
be this as it may, the credit stipulated in the promise to pay the
money, proves the agreement to look to T. M. Randolph for
payment. This acknowledgment is in the nature of a promis-
sory note, given after notice of the assignment of the bond, and,
consequently, is incapable of being discounted from it at law.—
[Note (2) ante, p. 245.]
68. But see an eacception to this principle in Buckner, &c. v. Smith, &c.,
I Wash. 296. Elliott's Eacor. v. Smock, I Wash. 389.] yet such equity must be
clearly established by proof, before it shall affect an assignee without notice; espe-
cially if the obligor, after assignment, promise payment to the full amount of the
bond, to the assignee. Mayo v. Giles’s Admr., I Munf. 533. Ludwick v. Croll,
2 Yeates, 464. Henry v. Brown, 19 John's Rep. 49.
NOVEMBER TERM, 1812. . 247
Scott v. Jones.
If J. Scott could not have used this acknowledgment at law,
can he avail himself of it in a court of equity?
Had no settlement of accounts or acknowledgment on the
part of T. M. Randolph been obtained, it would probably have
been impossible to establish the items of the account; and if they
could have been established, the claim might have been barred
by the act of limitations.
The acknowledgment of Randolph does not appear to give
any equity as against this bond. The credit stipulated destroys
any equity which might have arisen from the existence of an
actual debt at the time of the assignment. Independent of the
evidence which the face of the paper affords, of an understanding
that J. Scott was to look to Randolph for the money due on the
account, a creditor has not a right to give such a credit by which
a third person is affected. The mere circumstance of giving
the credit amounts to a taking the debt upon himself, and relin-
quishing the power to make it the debt of a third person.
Upon other grounds, too, the plaintiff has abandoned his equity
as against the bond on which this judgment was obtained. The
obligor in an assigned bond who has equitable discounts against
it, ought to inform the assignee of his claims, when notice of the
assignment is given to him. In fair dealing, he is bound to do
this, that the assignee may take measures to secure himself
against the assignor. It was decided in the case of Wardrop v.
Dobson’s Administrators, that the omission of the obligor to give
this notice to the assignee, deprived him of his equity in the
event of a total loss to be sustained by the one or the other of
the parties, and with that decision the Court is satisfied.(3)
It is the opinion of the Court, that the plaintiff could not have
availed himself at law of this claim as a discount, and is not at
liberty to set it up in equity. The bill, therefore, must be dis-
missed with costs. .
(3) The editor has not been able to find the case cited in support of this posi-
tion. The presumption is, that it was a case before the Chief Justice himself in
the circuit court. It seems to be amply sustained, however, by the cases cited in
note (2) to this case, ante.-[Editor.]
Çittttit (£0ttrt of tige ºſmittī s*tates,
VIRGINIA, MAY TERM, 1813.
H. EFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
HoN. SAINT GEORGE TUCKER, District Judge.
OLIVER Ev.ANs v. JoBDAN & MoREHEAD.
An old patent, securing to the inventor of improved machinery for the manufac-
ture of flour and meal, the exclusive use of his invention for 14 years, having
expired, J. & M. erected machinery, adopting the improvements of the paten-
tee, and subsequently, a special act of congress was passed, authorising the
secretary of state to issue a second patent for the same invention, for an ad-
ditional term of 14 years, which act contained the proviso, “ that no person
who shall have used the said improvements, or have erected the same for use
before the issuing of the said [second] patent, shall be liable to damages
therefor.” Held: That this proviso did not authorise the use of this improved
machinery, by J. & M., subsequent to the date of the second patent, and for
such subsequent use, they were liable to damages to the patentee.
THIS was an action for damages brought by the plaintiff,
against the defendants, for an alleged violation of a patent issued
MAY TERM, 1813. 249
Evans v. Jordan & Morehead.
to him for certain improvements made by him in the art of
manufacturing flour and meal.
In the year 1790, Oliver Evans obtained a patent, granting
to him, for the term of fourteen years, the exclusive right of
making, constructing, using, and vending, his invention in the
structure of machinery, to be employed in the art of manufac-
turing flour and meal. After the expiration of the term, for
which this patent right was secured, Jordan & Morehead, the
defendants in this suit, constructed and used the improved ma-
ehinery, invented by Oliver Evans. On the 21st of January,
1808, congress passed a special act,(1) authorising the secretary
of state, on application in writing, by Oliver Evans, to cause
letters patent to be made out in the manner and form prescribed
by the general patent law, granting to him, for a term not ex-
ceeding 14 years, “the full and exelusive right and liberty of
making, &c., his invention, &c., in the art of manufacturing
flour and meal, and in the several machines which he has dis-
covered, invented, improved, and applied to that purpose :
Provided, That no person who may have heretofore paid the
said Oliver Evans for license, to use his said improvements,
shall be obliged to renew said license, or be subject to damages,
for not renewing the same : And provided also, That no person
who shall have used the said improvements, or have erected the
same for use, before the issuing of the said patent, shall be liable
to damages therefor.” The second patent was issued on the 22d
of January, 1808, and this suit was brought in 1810. The de-
fendants pleaded specially, that they had constructed and used
the improved machinery of Oliver Evans, subsequently to the
expiration of the first patent, and before the date of the second,
and had continued to use the same ever since, as it was lawful
for them to do, and to this plea the plaintiff demurred. The
same question was also presented in other causes depending in
this Court, in which the said Oliver Evans was plaintiff.
(1) “An Act for the Relief of Oliver Evans.” Act of January 21st, 1808.-
[Editor.]
Vol. I.-2 I
250 VIRGINIA.
Evans v. Jordan & Morehead.
The cause was argued at this Term, IS13, before MARSHALL,
C. J., and TUCKER, J., and the following opinion was delivered by
MARSHALL, C. J.-These cases came on to be heard on de-
murrers to several pleas in bar which have been filed by the
defendants. It is intended to present two questions for the
consideration of the Court.
1st. Is Oliver Evans entitled to maintain this action against a
person who has used his machinery subsequent to the date of his
patent, but had constructed it previous to the passage of the act
by which his patent was authorised ?
2d. Is the case affected by the circumstance, that Oliver Evans
had obtained a previous patent for the same discovery, which
previous patent had expired before the construction of the ma-
chine, for the use of which the present suit is instituted P
This being one of those subjects which is, by the Constitution
of the United States, delegated entirely to the government of
the Union, the question which has been made, must depend on
the acts of congress.
The act of 1793 authorises the secretary of the state to issue
a patent to the inventor of any new and useful art, securing to
him “for a term, not exceeding fourteen years, the full and ex-
clusive right and liberty of making, constructing, using, and
vending to others to be used, the said invention or discovery.”(2)
This right could not be full and exclusive, if any other person
should have a right to make, construct, use or vend the inven-
tion which was the subject of the patent. The 5th section of
the same act subjects to a specific penalty “any person who shall
make, devise and use, or sell, the thing so invented.” The
terms “ devise and use” being coupled together, it might well be
questioned whether, under this law, any person would be subject
to the penalty for using a machine which he had not also made or
devised. But this doubt is removed by the act of 1800.(3) The
(2) Act to promote the progress of the useful arts. Feb. 21, 1793. 1 Story’s
Laws U. S., ch. 55, p. 300,—[Editor.]
(3) Act of April 17th, 1800. 1 Story's Laws U. S., ch. 25, p. 752–LEditor.]
MAY TERM, 1813. 251
Evans v. Jordan & Morehead. -- rº-- - . . . . .
3d section of that act repeals the 5th section of the act of 1793,
and subjects to the damages therein prescribed “any person who
shall make, devise, use, or sell,” the invention of any other,
which that other has secured by a patent.
This clause cannot be expressed in terms which would show
more conclusively, the intention of the legislature, to subject each
act contained in the enumeration to the penalty of the law, than
those which are employed. It has, therefore, been deemed ne-
cessary, by the counsel for the defendants, to insist that the obvious
construction ought to be overruled, either because it is uncon-
stitutional, or because it is a manifest injustice, which ought not
to be ascribed to the legislature.
To subject any person to a penalty for using a machine, the
invention of another, which had been constructed anterior to the
patent, has been pronounced an ea post facto law, and, conse-
quently, void.
But an act which prescribes conditions, under which alone a
thing may be used in future, cannot be ea post facto. It attaches
neither guilt nor punishment to a past act, but looks forward to
future acts, and prohibits the future use of the machine invented
by another, without compensating that other for his invention.
But it is contended that the injustice of exposing an individual
to pay for the use of a machine, a sum which he may deem above
its value, or to loose one which has been constructed at consider-
able expense, when he believed it might be lawfully constructed
and freely used, is so glaring, that such a construction ought never,
if it can be avoided, to be placed on an act of the legislature.
That an act ought so to be construed as to avoid gross in-
justice, if such construction be compatible with the words of the
law, will not be controverted ; but this principle is never to be
carried so far as to thwart that scheme of policy which the legis-
lature has the power to adopt. To that department is confided,
without revision, the power of deciding on the justice as well as .
wisdom of measures relative to subjects on which they have the
constitutional power to act. Wherever, then, their language ad-
mits of no doubt, their plain and obvious intent must prevail.
252 "VIRGINIA.
Evans v. Jordan & Morehead.
In cases of patents, although some injustice may ensue from
imposing a price to be paid to the inventor, on the future use of
a machine which was constructed before the patent was obtained,
yet the great fundamental principles of right, and of property, do
not appear to be so vitally wounded, as to induce the Court to
resist and struggle against the obvious meaning of words.
The constitution gives to the legislature a power “to promote
the progress of useful arts, by securing, for limited times, to in-
ventors, the exclusive right to their respective discoveries.” In
the exercise of this constitutional power, the legislature has pass-
ed an act, prescribing the mode by which a patent to any inven-
tion may be obtained, and giving to the patentee the exclusive
right to make, devise, use, or sell it, for fourteen years from the
date of the patent. , t .
The constitution and law, taken together, give to the inventor,
from the moment of invention, an inchoate property therein,
which is completed by suing out a patent. This inchoate right
is exclusive. It can be invaded or impaired by no person. No
person can, without the consent of the inventor, acquire a pro-
perty in the invention. Whenever, then, previous to a patent,
any person constructs a machine discovered by another, he con-
structs it subject to the right of that other. His right to use it
is qualified by the paramount right of the inventor to prescribe
the conditions on which he shall use it. Were it otherwise, the
exclusive right in the discovery which the constitution authorises
congress to secure to the inventor, and the exclusive right to use
it after the date of the patent, which the act of congress confers,
would not be exclusive, but would be participated with every
person who had constructed the machine previous to the emana-
tion of the patent. -
If gentlemen will recollect, that this inchoate and indefeasible
property in the thing discovered, commences with the discovery
itself, and is only perfected by the patent subjecting the future
use of the machine, constructed previous to a patent, to that
price which the inventor demands from others, for the use of it,
his discovery will not appear to be one of those violent inva-
MAY TERM, 1813. 253
Evans v. Jordan & Morehead.
sions of the sacred rights of property, which would justify a
court in disregarding the plain meaning of words. .
In deciding this first question, it still remains to inquire,
whether, from the particular act under which Oliver Evans has
obtained his patent, he derives rights as extensive as would
have been conferred by the general law. In the enacting part
of the law, reference is made to the general act, and it is de-
clared that his patent grants, “for a term, not exceeding fourteen
years, the full and exclusive right and liberty of making, con-
structing, using, and vending to be used, his invention,” &c.
In the enacting clause, there is found no difference between
this particular law and the general law. A patent issued under
the one, or the other, confers equal rights. Is this construction
varied by the proviso: The first proviso is, “That no person
who may have heretofore paid the said Oliver Evans, for a
license to use his said improvements, shall be obliged to renew
the said license, or be subject to damages for not renewing the
same.” The second is, “That no person who shall have used
the said improvements, or have erected the same for use, before
the issuing of the said patent, shall be liable to damages there-
for.” -
The second proviso has been supposed to comprehend the
ease at bar. But, surely, this would be extending the proviso
far beyond the meaning of the words. Their obvious import is,
that no person who shall have used the said improvements, or
have erected the same for use, before the issuing of the said
patent, shall be liable to damages for such previous use, or for
such previous erection ; but this no more excepts the future use
of a machine previously erected, from the operation of the
enacting clause, than it excepts from that operation, a machine
to be in future erected. The legislature, knowing that an
inchoate right to the exclusive use of his discovery was vested
in the inventor, from the moment of discovery, and only per-
fected by the patent, might deem it necessary to guard against a
continuation, which would make this patent relate back to ante-
254 VIRGINIA.
Evans v. Jordan & Morehead.
cedent transactions. This may have been a superfluous caution,
but such caution is often found in legislative proceedings.
This construction derives additional force from the first pro-
viso. This does away the necessity of renewing licenses, pur-
chased under the former patent. The words of the proviso,
certainly, apply to all former licenses, for which payment had
been made, not to those for which no payment had been made,
and shows, that the legislature supposed it possible, that the
effect of the patent would be extended to such licenses.
An attempt has been made to impair the influence of this
proviso, by its application to cases in which a license had been
obtained and paid for, but the machine had not been constructed.
There is nothing in the words to justify the idea, that the legis-
lature designed to limit their operation to such particular cases;
and to suppose their existence, requires no inconsiderable effort
of the imagination. It is difficult to assign a motive for pur-
chasing, just before the expiration of a patent, a license to use a
discovery, which the purchaser did not purpose to erect until
the patent should expire.
It is, then, the opinion of the Court, that the act for the relief
of Oliver Evans, considered independent of any former patent,
would authorise him to sustain an action for the use of his
invention, after the date of his patent, although the machinery
itself had been constructed before its date.
Does the existence of a former patent affect the question of
law The Court can perceive no ground on which to rest an
affirmative answer to this question. That construction of the
constitution which admits the renewal of a patent, is not contro-
verted. A renewed patent, then, has the same obligation, and
confers the same rights, with an original patent. The inchoate
property which vested by the discovery, is prolonged by the
renewed patent, as well as by the original patent. There may
bé powerful reasons with the legislature for guarding a renewed
patent, by restrictions and regulations, not to be imposed on
original patents; but these reasons address themselves to the
MAY TERM, 1813. 255
The United States v. Feely, &c.
legislature only. If they have been overlooked or disregarded
in the hall of congress, it is not for this Court to set them up.
NotE.-The Court being divided in opinion, pro forma, on the question raised
by the demurrer in this cause, the following order was made :-" On the trial of
this cause, it occurred, as a question, whether, after the expiration of the original
patent granted to Oliver Evans, a general right to use his discovery was not so
vested in the public, as to require and justify such a construction of the act
passed in January 1808, entitled “An Act for the relief of Oliver Evans,’ as
would exempt from either treble or single damages, the use, subsequent to the
passage of the said act, of the machinery therein mentioned, which was erected
subsequent to the expiration of the original patent, and previous to the passage of
the act, entitled “An Act for the relief of Oliver Evans ?”
“Upon this question, the Court was divided in opinion, and it is, therefore,
ordered to be certified to the supreme court for their decision and direction’
thereon.” -
The supreme court of the United States unanimously sustained the above
opinion of the Chief Justice. See 9 Cranch, 199; 3 Con. Rep. Sup. Ct. U. S.,
358. The decisions of the United States court, on cases arising under the patent
act, are collated by Mr. Peters, in a note at the end of the case.—[Editor.]
THE UNITED STATEs v. FEELY, &c.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
HoN. SAINT GEORGE TUCKER, District Judge.
Where an individual is charged with the commission of a criminal offence, and
enters into a recognizznce, conditioned to appear at a given day, and undergo
his trial, which recognizance is forfeited by the failure of the party to appear
and submit himself to the law ; but the accused appears at the succeeding term
of the court, the court in which the recognizance is filed has full power to
suspend (or discharge 3) it, for good cause shown by the accused, why he did
256 VIRGINIA.
The United States v. Feely, &c.
not comply with the condition of the reeognizance : the object of such a re-
cognizance being, not to enrich the treasury, but to combine the administra-
tion of criminal justice with the convenience of a person accused of a crimi-
, nal offence, but not proved to be guilty. -
THE case was stated, and the opinion of the Court delivered
as follows, by
MARSHALL, C. J.-This is a motion made to stay proceedings
on a scire facias, which has been sued out of this Court, by the
attorney of the United States, against Feely and his security,
requiring them to show cause, why execution should not be had
against them, on a recognizance entered into by them, condi-
tioned for the appearance of the said Feely, on the first day of
the last term, to answer an indictment filed against him in this
Court.
Feely did not appear, and his default was recorded. He ap-
peared on the first day of this term, and is now in custody, on
the motion of the attorney for the United States.
It is contended, on the part of the United States, that the
Court possesses no power over this recognizance : that being
forfeited, it has become a debt due to the United States, which
is no more subject to the control of this Court, than a debt upon
contract.
It is admitted, on the part of the United States, that in Eng-
land, the court of exchequer exercises this power. But the
statutes of the 33 H. S. c. 39, and of 1 Geo. 2, expressly dele-
gate it, and it is contended, that from these statutes alone, the
authority of the court of exchequer is derived. Mr. Bacon, in
his Abridgment, vol. ii. p. 150, says, that it is by virtue of
33 H. S., that courts of exchequer discharge recognizances, and
his opinion is certainly entitled to respect.
It is contended by the counsel for the prisoner, that these sta-
tutes are made in affirmance of the common law. For this there
is no dictum in the books. But if they do not simply give a
statutory form to a rule of the common law, there is reason to
believe that they permit a principle to be exercised, directly and
MAY TERM, 1813. -- 257
The United States v. Feely, &c.
effectively, which was before not absolutely unknown to the
Court. They authorise a discharge, or a compounding of re-
cognizances, and, perhaps, without them, recognizances could
not be absolutely discharged or compounded. But it does not
follow necessarily, that the same effect might not be indirectly
produced by a perpetual suspension.
It is apparent, that the power given by statute is conferred
on the court of exchequer only; consequently, the power exer-
cised by the courts of common law, is derived, not from the
statute, but the common law.
It is admitted by the prosecutor, that the power which the
courts of common law exercised over recognizances in England,
may, in the United States, be exercised by this Court. Let us,
then, inquire what that power is 2 The attorney relies upon the
case in 11 Mod.200.(1) In that case, a motion made on the day
of appearance to discharge the recognizance, because the cog-
nizor was sick and unable to appear, was overruled by the court,
notwithstanding the consent of the attorney for the crown, be-
cause the court could not grant the motion ; but the time for
appearance was enlarged. The officers of the crown are gene-
rally sufficiently attentive to its interests, and it is somewhat
extraordinary, that one of them should consent to release a debt,
which debt was absolutely beyond the power of the court. The
expression employed by the judge, may be used in reference to
the propriety of the order. But, admitting it to import a posi-
tive legal inability to grant the motion, it will be recollected,
that the motion was for an absolute discharge of the recognizance.
A declaration, that the court could not discharge it, was not
equivalent to a declaration, that the court could exercise no
power over it. In fact, the court did proceed to relieve the party
from his default, by extending the time for his appearance.
If the court possessed no power over the subject ; if, upon
failure to appear, the debt, according to the terms of the recog-
nizance, became absolute, and was placed beyond the power of
(1) The Queen v. Lord Drummond.—[Editor.]
Vol. I.--3 K
25S VIRGINIA.
The United States v. Feely, &c.
the court, it would be difficult to support the order which was
actually made.
The case of the Queen v. Ridpath, 10 Mod. 152, does not
bring into view the power of the Court. It did not, in any de-
gree, turn on that point. V.
The case of King v. Tomb, 10 Mod. 278, is vaguely reported,
and its circumstances are omitted. In that case, however, the
principle is expressly laid down, that “judges of oyer and ter-
miner are the proper judges whether recognizances ought to be
estreated or spared :” that is, that the court in which the recog-
nizance is filed, decides after default made, whether the attorney
for the crown shall estreat the recognizance, in order to put it in
suit.
It will be recollected, that in England, the recognizances of
this description are filed in a court of criminal jurisdiction, and
sued, not in that court, but in the court of exchequer. “No in-
stance,” says the book, [King v. Tomb, “can be produced, of a
certiorari to remove a recognizance for appearance from a court
of oyer and terminer. It would be to take away a jurisdiction
that properly belongs to them.” “It is for the advantage of
public justice, that it should be in the power of justices of oyer
and terminer to spare the recognizance, if, upon the circumstances
of the case, they see fit.” -
This, then, is an express decision, that the court in which the
recognizance is filed, may, if, upon the circumstances of the case,
they see fit, after default has been made, and the recognizance is
forfeited, refuse to permit it to be estreated, in order to be put in
suit. It is a question exclusively for their decision, and no other
court will control or inquire into the propriety of that decision.
This power remains so long as the recognizance remains in court.
When once estreated, the recognizance and all power over it are
transferred to another tribunal.
In the United States, there is no separate court of exchequer;
and recognizances are put in suit in that court in which they are
originally filed. They are never estreated. The power which
the courts of law in England exercise on the question, whether a
MAY TERM, 1813. 259
The United States v. Feely, &c.
recognizance shall be estreated or not, is exercised after default,
and continues as long as the recognizance remains in court. It
is dependent on the discretion of the court, and, according to
Hawkins, is applied in relief of the cognizor, if the person who
has forfeited it, shall appear at the next succeeding term and take
his trial. The same power existing in this Court may, it would
seem, as in England, be exercised so long as the recognizance
continues in court. If, when the default was recorded, it had
been shown to the Court that the accused was in custody of the
law, then, according to the case in 11th Mod., the Court might
have extended the recognizance. Why may not the excuse be
made as effectually at a subsequent day The case of Rex v.
Eyres and Bond, 4 Burrows, 2118, is also reported in a very un-
satisfactory manner. It is not improbable that the case had been
compromised in the court of exchequer. There is too much un-
certainty in the report to rely much upon it.
The authority, on which the court most relies, is Mr. Black-
stone. In his 4th vol. p. 254, he says:—“A recognizance may
be discharged, either by the demise of the king, to whom the
recognizance is made, or by the death of the principal party
bound thereby, if not before forfeited, or by the order of the
court, to which such recognizance is certified by the justices, (as
the quarter sessions, assizes, or king’s bench,) if they see sufficient
cause.”
Upon authority, then it appears, that entirely independent of
the statute, the courts of England exercise the power which this
Court is now required to exercise. |
It is not an unreasonable power. The object of a recogni-
Zance is, not to enrich the treasury, but to combine the admin-
istration of criminal justice with the convenience of a person
accused, but not proved to be guilty. If the accused has, under
circumstances which show that there was no design to evade the
justice of his country, forfeited his recognizance, but repairs the
default as much as is in his power, by appearing at the succeed-
ing term, and submitting himself to the law, the real intention
and object of the recognizance are effected, and no injury is done.
260 - VIRGINIA.
The United States v. Feely, &c.
If the accused prove innocent, it would be unreasonable and
unjust in government to exact from an innocent man a penalty,
intended only to secure a trial, because the trial was suspended,
in consequence of events which are deemed a reasonable excuse
for not appearing on the day mentioned in the recognizance. If
he be found guilty, he must suffer the punishment intended by
the law for his offence, and it would be unreasonable to superadd
the penalty of an obligation entered into only to secure a trial.
The reasonableness, then, of the excuse, for not appearing on the
day mentioned in the recognizance, ought to be examined some-
where, and no tribunal can be more competent than that which
possesses all the circumstances of the original offence, and of the
default. Should the legislature think otherwise, the case may
be provided for by statute. At present, the law is understood
to be that this Court possesses full power over the subject. All
proceedings, therefore, on this recognizance may properly be
stayed, until it shall appear whether the accused shall continue
to submit himself to the law, or shall attempt to evade the justice
of the nation. This recognizance will await the final trial of the
cause. In the mean time, the Court is of opinion, that an addi-
tional recognizance may be required, but not in such a sum as to
amount to refusal of bail, or to be really oppressive. It is the
direction of the Court, that the prisoner stand committed until
he shall enter into a recognizance himself, in the sum of $500,
and one or more Sureties in the same sum, conditioned as the
law requires.
MAY TERM, 1813. 26 1
PEGRAM v. THE UNITED STATEs.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
HoN. SAINT GEORGE TUCKER, District Judge.
In an action on a joint and several bond against several defendants, some of
whom are non-residents of the state in which the suit is brought, and there is a
return of “no inhabitants” as to them, the plaintiff may proceed to take judg-
ment against those on whom process has been served.
, If, in such a case, the plaintiff declares against all the co-obligors, and those on
whom process has been served, proceed to trial on the merits, the averment, that
all the co-obligors are in custody, though irregular, is not fatal, and will not
preclude the plaintiff from obtaining a Judgment against such of the co-obli-
gors as are really before the court. . - -
As to the extent of the rule, that where there are several pleas, the legal infer-
ences from the averments contained in one plea, have no influence in deciding
on the averments of another plea, see the following opinion.
THE opinion of the Court was delivered as follows, by
MARSHALL, C. J.-This is a writ of error to a judgment
rendered in the district court against the plaintiff in error, on a
bond, taken by the collector for the district of Petersburg, under
the act laying an embargo.
The declaration is joint against all the obligors. The writ
was also joint. It was executed on the plaintiff, and abated as
to the other obligors, on the return, that they were no inhabi-
tants. *
It is contended, that this writ was void, since persons over
whom the Court has no jurisdiction, they being non-residents of
the state, are united with one who is a resident, and that being
void in part, it is void in the whole. The decision of the
supreme court, in the case of a writ brought by plaintiffs,
some of whom are citizens of the same state with the defendants,
262 i VIRGINIA.
Pegram v. The United States.
is considered as authority for the proposition urged in this
case.(1) - - -
But the Court is of opinion, that the cases are essentially
different.
In the case decided in the supreme court, the different mem-
bers of the company formed one plaintiff, and the incapacity of
one of them to come into the courts of the United States, was
considered as extending to all the others, and as excluding the
case itself from the jurisdiction of those courts. In this case, the
jurisdiction of the court is not denied. It is admitted, that a
separate action could have been sustained against Pegram, and
that the action could have been sustained against them all, if
process could have been served on them, or if they had appeared
and pleaded to the action. The process, then, is not void
ab initio. It is valid in the commencement, and is voidable by
facts that afterwards appear. The return operates as a plea in
abatement, not because the writ issued erroneously, but because
a fact appears, subsequent to its emanation, which disables the
court from proceeding against all the parties. If, in such a case,
it were necessary to dismiss the suit, and to bring a new action
against the party who is an inhabitant, the inconvenience would
be great, and no advantage would accrue to the party against
whom the new process would issue. In cases where there is no
fault in the original process, but the plaintiff does all he can do
to bring all the parties before the court, as when he proceeds to
outlawry, he is permitted to take judgment against those who
are brought before the court. In this case, the plaintiff has done
all he could do. The return abated the writ, and he could not
proceed to outlawry; nor could he use any means to compel an
appearance. It would seem reasonable, then, to place him in
the same situation with a plaintiff who proceeds to outlawry,
and then takes judgment against the party before the court.
Had this bond been joint, and not joint and several, it may
- (1) Strawbridge et al. v. Curtiss et al., 3 Cranch, 267; 1 Con. Rep. Sup. Ct.
U. S., 523.−[Editor.] - $
MAY TERM, 1813. 263
Pegram v. The United States.
well be doubted whether the plaintiff would not have been com-
pellable to have made all the obligors defendants. In such case,
where the obligors reside in different states, there would be no
court of the United States which could take jurisdiction, unless
judgment could be given against one of them, or process issued
against all. To suppose the jurisdiction of the federal courts
excluded in such a case, would be to give the act of congress a
very inconvenient and unreasonable construction.
The same principle has been presented in a form somewhat
different. It has been contended, that by declaring against par-
ties as being in custody who are not before the court, the plain-
tiff has committed an error of which the defendant may avail
himself after the verdict.
That the proceeding is irregular, cannot be doubted or denied.
The declaration ought to have conformed to the truth of the case.
But if this could be proven, which is by no means certain, it
does not follow that advantage may be taken of this irregularity
otherwise than by plea. The irregularity does not affect the
merits or the justice of the cause. The defendant has gone to
trial on the merits, and sustains no injury from the circumstance
that his co-obligors are, contrary to the fact, stated to be also in
custody. If the plaintiff could have proceeded on this writ, to
take judgment against the person arrested, by stating in his
declaration, that the other obligors were no inhabitants of Vir-
ginia, the averment that they were in custody does not appear
to the Court to be a fatal averment. Both these points appear
to have been settled in the case of Barton v. Pettit and Bayard,
[7 Cranch, 206; 2 Con. Rep. Sup, Court of U. S. 471]. In that
case, the supreme court clearly indicated the opinion, that the
judgment against Barton alone, on a declaration stating a joint
action against Barton and Fisher, might have been sustained, had
the return of the officer shown that Fisher was no inhabitant.
Although that principle was not necessary to the judgment ren-
dered in that cause, and is, therefore, not of such complete obli-
gation as if the very point had been decided in the main question,
yet this Court must suppose it to have been argued at bar, and
264 * VIRGINIA.
Pegram v. The United States.
considered by the court, for it is intimately connected with the
question on which the cause depended. x
A third error assigned in these proceedings is, that on a bond
with a collateral condition, judgment has been rendered for the
penalty, although it does not appear, either by the bond itself, or
by the pleadings, that it was taken in conformity with the statute.
In this case, the declaration is on the obligation, as on a single
bill. The defendant prays oyer, and pleads five several pleas.
In his first plea, he does not state that the bond was taken by the
officer, who was authorised by law to take it, and the replication
to this plea is general. In each of the remaining pleas, the de-
fendant avers substantially that the vessel was within the district
of Petersburg, and that the bond was given to the collector of
that district, and then pleads matter in avoidance of such bond.
To some of these pleas, the plaintiff demurs; and on the others,
takes issue. The demurrers have all been determined against
the defendant, and the issues have been found against him.
The statute which directs the bond, also directs that it shall
be taken by the collector of the district in which the vessel lies.
And it is contended, that as it does not appear, by the pleadings
on the first issue, that the bond was taken by the collector of the
district where the vessel lay, the court cannot intend it to have
been taken by him, and cannot consider it as a statutory bond. It
is also contended, that as the matter of one plea cannot be trans-
ferred to another, the admission of the defendant in his other pleas,
that the bond was taken by the proper officer, cannot aid the
plaintiff, so far as respects the judgment of the court on this issue.
The rule. that legal inferences from the averment of one plea,
or the facts as averred in one plea, have no influence in deciding
on the averments of another plea, is unquestionably correct.
The examples given of payment and a release, or of non est
factum, and a release, very well illustrate the rule. So in this
case, one plea avers that the bond was taken by the collector of
the port, in which the vessel lay, by duress. If another plea
had stated that the bond was not given to the collector of the
port, the first plea would not have been evidence on the trial of
MAY TERM, 1813. 265
Pegram v. The United States.
the second issue. But the cases are not thought precisely pa-
rallel. The judgment of the Court is not rendered on the first
plea only, but on the whole record. Every plea has been de-
cided against the defendant, and, consequently this judgment of
the Court must be rendered against him. The question is, shall
this judgment be given as on a statutory bond, or on a bond at
common law. The whole record shows that the bond is taken
conformably to the statute, and as the judgment of the Court
must be upon the whole record, it must be for the penalty of
the obligation. The judgment cannot regard it as a bond both at
common law and under the statute. It must then have the cha-
racter which the record gives it.
The Court would assimilate this case to one in which there
were several pleas in bar, one of which was totally immaterial.
If the issues be found for the plaintiff, he will have judgment,
although had the immaterial issue been the sole issue in the
cause, a repleader might have been awarded. The issue, it is
true, is not immaterial, but being found for the plaintiff, it forms
no bar to the action, and cannot, in the opinion of the Court,
avail the defendant more than if he had not pleaded it.
No error; judgment affirmed with costs.
Vol. I.-2 L
circuit court of the gmited states.
VIRGINTA, MAY TERM, 1814.
13. FCIRE
Hon. JoHN MARSHALL, Chief Justice of the United States.
GEORGE ALSTON ET AL., Executors of THoMAs MUTTER v.
WILLIAM MUNForL ET AL., Heirs and Devisees of RoHERT
MUNFord, deceased.
It seems, that the fifth section of the act of Virginia of 1792, which limits the right
of reviving judgments by scire facias, or action of debt, to the period of ten years,
applies as well to those judgments which had been rendered at the time of the
passage of the act, as to those rendered afterwards; but if a creditor, who had
obtained a judgment against his debtor, in the life-time of the latter, has been
employed in pursuing the personal estate in the hands of the executor, or if a
court of equity has enjoined him from exhausting the personal estate, and so the
delay has been produced, the act ought not to be so construed as to bar a scire
- facias against the heir, after the lapse of ten years. .
An action of debt is brought on a bond; the verdict, as rendered by the jury, is
for the penalty to be discharged by the sum expressed in the condition, with in-
terest till paid; but by the misprision of the clerk, the verdict is entered for the
smaller sum as damages, without interest, and the judgment is entered for the
penalty to be discharged by those damages without interest. It seems, that for this
misprision, the judgment might have been reversed by writ of error, coram vobis.
In such case, if the misprision occurred in a suit against the executor, and a sub-
sequent suit be brought against the heir, he cannot avail himself of the error
in the judgment, (even if it is not amendable,) but is liable for the whole amount
MAY TERM, 1814.
2
6
7
Alston v. Munford.
due. As the judgment could not be given in evidence against the heir, so
neither can it be given in evidence in his favour.
If a suit in chancery is brought against an heir, to subject him to the payment of
an old bond, and the defence of the heir is the length of time, the court will, if
the heir require it, direct an issue, to ascertain whether it has been paid or not.
A foreign bill of exchange, protested, does not bind the heir of the drawer.
If A be the executor of B, and testamentary guardian of C, the daughter of B,
and the testator give a bond as a specific legacy to his daughter, and A receives
the bond, and charges himself, in his executor’s account, with the amount thereof,
“to be paid to his ward,” and writes to the obligor, in the bond, that he shall
make himself debtor to his ward for the legacy, and hold the obligor as bound
to himself. Held: 1st. That this is an assent of the executor to the legacy,
and a payment of it to the guardian, as much as if the two characters were not
united in one person. 2d. That the sureties of A, in the executor’s bond, (as
well as the executor,) are discharged from liability for the legacy under the
executor’s bond. 3d. That A was chargeable, as guardian, but as he gave no
bond in that character, his heirs; on his death, are not bound, though the debt
remains one of the first dignity against his personal estate.
If there be four testamentary guardians, one of the four has a right to receive a
legacy for the ward, from the executor, and to give a receipt to him for the
same, and the aequittance to him is good, without requiring the joint receipt
of all. And on the same principle, if the characters of executor, and of receiving
guardian, be united in the same person, the guardian who charges himself,
discharges himself as executor.
The principle of marshalling assets, is this. A creditor having the choice of two
funds, ought to exercise his right of election in such a manner as not to injure
other creditors, who can resort to one only of those funds; but if he, in the ex-
ercise of his legal rights, exhausts that to which alone other creditors can resort,
equity will place them in his situation, so far as he has applied their funds to
his claim.
In the application of this principle, simple contract creditors will be substituted for
specialty creditors, but not for judgment creditors: that is, the simple contract
creditors cannot charge the lands for so much of the personal fund as has been
applied to the payment of debts due by judgments obtained against the ancestor.
The reason is, that the writ of elegit, by virtue of which the land is charged by
judgment against the ancestor, does not issue singly against the land, but against
all the chattels, (save oxen, and beasts of the plough,) and if the chattels be
sufficient, the land ought not to be extended. The judgment creditor, therefore,
has not the election between two funds, (as the specialty creditor has,) and the
principle on which assets are marshalled, does not apply to the case.
Upon this principle of marshalling assets, where payments have been made by an
executor, to the vendor of land purchased by the ancestor, and not conveyed to,
him, the lien of the vendor will be marshalled.
26S VIRGINIA.
Alston v. Munford.
GEORGE ALSTON and others, of the state of North Caro-
lina, executors of Thomas Mutter, late of the said state, exhibited
their bill in this Court, against William Munford, heir at law,
and devisee of Robert Munford, deceased, Anne Munford, his
widow, and Anne Byrd, widow of Otway Byrd, and Richard
Kennon, and Elizabeth his wife, which Anne Byrd and Eliza-
beth Kennon were children of the said Robert Munford, and all
of the state of Virginia.
The bill sets forth, that Robert Munford was, in his lifetime,
indebted to Thomas Mutter, in a certain sum, by a writing,
(a copy of which is filed among the exhibits, and appears to have
been a note, without seal,) on which writing a suit was insti-
tuted in North Carolina, by the said Mutter, against the execu-
tors of the said Robert Munford, and judgment obtained against
them : that Robert Munford, by his will, appointed Otway
Byrd, and Richard Kennon, his executors, of whom the former
only, qualified, and after possessing himself of the testator’s
property to a very great amount, died intestate, and Anne Byrd,
his widow, administered on his estate : that no person has taken
administration on the estate of Robert Munford, since the death
of Otway Byrd : that the said Robert Munford died seized in
his own right, of large tracts of land in North Carolina and
Virginia, and the plaintiff calls on William Munford, his eldest
son and heir at law, to discover where those tracts are situated,
and to what amount : that the said widow and children are next
of kin to the said Robert Munford, and will be entitled, under
his will, to any surplus which may remain of his personal estate,
after debts paid : that they have frequently demanded payment
of the judgment aforesaid, from Otway Byrd, the executor, and
from the defendants, but have never obtained it. The bill, there-
fore, prays, that the above mentioned parties may be made de-
fendants; that an account of the real and personal estate of the
testator, Robert Munford, may be taken, as well as the admi-
nistration of it by Otway Byrd ; that the assets may be mar-
shalled ; that if the personal estate is insufficient to pay all the
debts, the testator’s lands may be sold to satisfy them ; that the
MAY TERM, 1814. 269
Alston v. Munford.
plaintiffs may, if necessary, be substituted in the room of any
creditor, or creditors, who may have already received satisfac-
tion; and for general relief. -
This suit was commenced in July 1803. At the May Term
of the court 1804, the court ordered one of the commissioners
of the court to examine, state, and settle all matters and accounts
between the parties in this cause, and to report to the court,
what estate the said Robert Munford died seized and possessed
of, real and personal, and in what manner the said personal estate
has been administered, stating such special matters as either
party may require, or he think fit. -
At the same time, William & Peter Murdock, surviving part-
ners of W. Cunningham & Co.; and James Jameson & Richard
Cameron, surviving partners of Buchannans, Hastie & Co.; were
respectively, on their bills filed, made parties plaintiffs in this
CàUIS6.
The claim of the first was founded on a bill of exchange
drawn by Robert Munford, in February 1776, on William
Cunningham of Glasgow, in favour of William Cunningham &
Co., which was protested for non-acceptance; and judgment
when assets on this protested bill was rendered in favour of the
said Cunningham & Co., against Otway Byrd, the executor of
Munford in this Court, in December 1798.
The other claim was founded on a bond, in the usual form,
binding his heirs, executed by the said Munford, to Buchannans,
Hastie & Co., dated 22d May, 1772, in the penalty of £1166 7s.,
current money of Virginia, conditioned to pay in October fol-
lowing, the sum of £566 3s. 6d. On this bond, suit had been
brought, and a verdict was rendèred in this Court, in December
1798. In the verdict, as recorded, the jury assessed the plain-
tiff’s damages to $1220 58 cents, thus giving no interest on
those damages, and that the defendant had fully administered.
The verdict, as actually rendered, was for the debt in the de-
claration mentioned, to be discharged by $1220 58 cents, with
interest from the last day of October 1780, till paid. The judg-
ment was for the penalty as a sterling debt, but to be discharged
270 VIRGINIA. "
Alston v. Munford.
by the damages aforesaid assessed, (that is by $1220 58) without
interest; and was rendered of the assets, quando acciderint.
In May 1805, William Munford, the heir, filed his answer,
in which he states, inter alia, that he is the son and residuary
devisee of Robert Munford, who died in January 1784; that he
is willing to render a just account of the lands which were de-
vised to him, and that a commissioner may make a fair statement
of the sales which he made of the said lands, and of the pay-
ments which he made to the creditors; that part of the Oconee-
chee tract is yet unsold, and that the Richland tract, which was
devised to the widow for life, is now held by the defendant, the
widow being dead : that these tracts lie in Mecklenburg, on
Roanoke River. He states, that Otway Byrd, the executor,
placed in his hands as attorney, sundry bonds belonging to the
estate, for which he will be ready to account, as soon as an ad-
ministrator, with will annexed of said estate, shall be appointed:
that as to the administration of the personal assets, however,
the claims of the plaintiffs are of inferior dignity to that of
Conway Whittle, in whose favour a decree of the high court of
chancery of Virginia has been rendered, and which will absorb
all the money in the defendant’s hands : that claim, he alleges
to be of the first dignity, it being due for a legacy bequeathed
by a certain Theodorick Munford, of whom Robert Munford
was executor, to Frances, the wife of the said Conway Whittle.
- The defendant admits, that as devisee of Robert Munford, he
is bound to pay the bonds in which the said Robert bound him-
self and his heirs, to the value of the real estate devised to him,
but he alleges that the claims exhibited by the surviving partners
of W. Cunningham & Co., and by the executors of Thomas
Mutter, are founded on writings, in which Robert Munford did
not bind himself and his heirs, and, therefore, they are not en-
titled to recover against him as heir, or devisee, except by mar-
shalling the real and personal assets, which cannot be done, until
the account of Otway Byrd, the executor of Robert Munford,
shall have been settled : that the defendant is not responsible for
the transactions of the executor, nor can he be required to settle
MAY TERM, 1814. 271
Alston v. Munford.
the account current ; that when an administrator, with the will
annexed, shall have been appointed, the account may be legally
settled between such administrator, and the administratrix of
Otway Byrd, the executor.
The defendant also demurred, to so much of the bills as prayed,
that the lands left by the said Robert Munford, may be sold for
the payment of their claims, on the ground, that the law does
not direct lands under no mortgage, or other incumbrances, to
be sold for the payment of debts.
The defendant, Anne Byrd, administratrix of Otway Byrd,
also filed a plea, and answer, and Richard Kennon, also answer-
ed. It is deemed unnecessary, to make a statement of their
respective defences. -
The commissioner made a report of the several matters refer-
red to him, in November 1806, to which both Mutter’s execu-
tors, and Munford’s heir excepted ; and in December 1807, the
Court made an interlocutory order, recommitting the report to
the commissioner, with further instructions. It is unnecessary
to state the substance of that report, of the exceptions, or of the
decree.
On the 11th June, 1808, John Peirce, surviving executor, and
trustee of Samuel Beall, deceased, was made a party plaintiff in
this cause, and filed his bill, which alleges, that the estate of the
said Robert Munford, is indebted to that of his testator, by judg-
ment of the general court of Virginia, bearing date on the 20th
day of October, 1783, rendered against the said Robert Munford,
in his lifetime, for 66,883lbs. tobacco, with lawful interest, from
the 14th day of May, 1782, till payment, on which judgment,
a large balance is still due ; that the said plaintiff had been en-
joined by the chancellor of Virginia, from proceeding on the
said judgment by a Bill of Conformity, filed by Otway Byrd,
the executor, who alleged that by paying creditors without an
account, he might be subjected to a devastavit. The plaintiff
prayed, that satisfaction of his said judgment-debt might be
secured to him.
The defendant, William Munford, to this bill, filed his plea
272 . . VIRGINIA.
Alston v. Munford.
and answer. He pleaded, 1st. That the judgment is now no
lien on the land of which Robert Munford died seized, if there
was ever alien, being lost through length of time, the said judg-
ment bearing date in October 1783, and no writ of elegit or
scire facias having ever been issued, for the purpose of subject-
ing the said lands to satisfy the same ; he, therefore, prayed the
benefit of the Act for Limitations of proceedings upon judg-
ments: 2d. For further plea, he said, that if the said plaintiff
hath at this time, any lien on the said lands, by virtue of the
judgment, his remedy is at common law, and not in chancery,
and he, therefore, pleaded to the jurisdiction of the court.
In his answer the defendant says, that Samuel Beall, in his
lifetime, revived his judgment, either by scire facias, or action of
debt, in the court of Charles City county, against Otway Byrd
as executor of Robert Munford; that he, together with other
creditors, was enjoined from proceeding on his judgment, until
the nature and dignity of their various claims could be ascer-
tained; that on the 2d of October, 1797, a decree was entered
directing the executor to go on, and pay the creditors of Robert
Munford in the manner therein directed, which decree the de-
fendant conceives to be equivalent to a dissolution of the injunc-
tion: that other creditors (such as Buchanan, Hastie, & Co.)
proceeded to enforce their claims at law by obtaining judg-
ments: that the plaintiff has been guilty of neglect in not mov-
ing to dissolve the injunction, if it was still tied up by injunc-
tion: that Otway Byrd died in September 1800, and that the
said suit was entered, abated by his death in September 1802.
By reference to the decree of October 1797, mentioned in the
above answer, it appears that the injunction was not dissolved. It
was abated by the death of Otway Byrd on the day mentioned.
The claim of Conway Whittle is sufficiently set forth in the
opinion of the court, without making any farther statement.
The Chief Justice delivered the following opinion.
MARSHALL, C. J.-So far as these suits affect the heir, it be-
comes material to distinguish those claims which may at this
MAY TERM, 1814.
2
7
3
Alston v. Munford,
N.
time be asserted against the real estate, and then to inquire what
claims may be supported upon the principle of marshalling assets.
The first claim which has been discussed, is that of the execu-
tors of Samuel Beall, deceased. This was a judgment obtained
by Samuel Beall in his lifetime, against Robert Munford in his
lifetime, which was revived after the death of Munford, to wit,
in 1784 or 1785, against his executors.
The great objection to this debt is, that the judgment as against
the real assets, is barred by the Act of Limitations.
By an act passed in 1792,(1) it is declared that judgments in
any court within this commonwealth may be revived within
ten years next after the date of such judgment, and not after.
The words of this act, taken in their strict literal sense, cer-
tainly extend to this case ; but it is contended that this strict
construction must yield to one more favourable to the creditor,
and Eppes v. Randolph, [2 Call, 125, has been cited in support
of this position. - *
In Eppes v. Randolph, the obligation of a judgment of much
older date was unquestionably admitted without controversy,
but in that case, the point was not made at the bar nor decided
by the bench, and the claim' was asserted within less than ten
years after the passage of the act.
In the construction of this act, some difficulty is produced by
the circumstance, that the draftsman has omitted to change the
phraseology where a new provision was introduced, so as to
adapt the language of the act to the subject. Actions had been
previously limited, and this act of 1792, does, in general, only
re-enact what was law before, and therefore it would have been
improper, in most of its provisions, to give time for the institu-
tion of a suit subsequent to the passage of the act. For exam-
ple: the first section gives a right to sue forth a writ of for-
medon, within twenty years after the cause of action accrued,
(1) Revised Code of 1792, ch. 76, sect. 5. The same provision re-enacted,
1 Rev. Co. of 1819, ch. 128, sect. 5.-[Editor.]
VoI. I.-2 M
274 * VIRGINIA.
Alston v. Munford.
and not after. If the whole twenty years had elapsed before
the passage of the aet, the action would be barred; or if nineteen
years had elapsed the action must be brought within one year,
or the action would be barred. This is very proper, and was
undoubtedly within the intention of the legislature. Previous
acts of limitation, which were repealed by this, had created the
same bar to this action, and if a time for bringing it had been
given after the passage of this act, it would have exempted from
the operation of former acts, claims which had already been
barred by them, or might have given to the claimants a much
longer time to assert, those claims than they would otherwise
have been entitled to. It was the intention of the legislature
merely to bring all former acts into one, and not to change the
rights or situation of parties so far as former statutes had pro-
vided for the case.(2) But no former act of limitations had
extended to judgments. Had the legislature adverted to this
circumstance, it is probable that a certain time would have been
given, after the passage of the act, for the revival of judgments
previously rendered. Not adverting to this circumstance, they
have employed terms which, strictly interpreted, must bar im-
mediately any action on judgments of more than ten years stand-
ing, unless they be so construed as to exclude those judgments
entirely from their operation. t;
There is a peculiar degree of carelessness in the phraseology of
the two sections on this subject. The first, which is the fifth
section of the act, uses the appropriate terms for those judgments
only, which had been actually rendered when the act passed, and
would, therefore, justify the idea that the act speaks as at the
point of time when the scire facias issues; but the succeeding
section applies itself expressly, both to judgments which had
been rendered before the passage of the act, and to those which
(2) The first section of the act of 1792, c. 76, for the limitation of action, re-
ferred to by the Chief Justice, was re-enacted from the act of 1748, c. 1, 5 Hen.,
Stat. at Large, 415–IEditor.] & -
MAY TERM, 1814. 275
Alston v. Munford.
might thereafter be rendered. This produces the necessity of
applying the preceding section to the same judgments.(3)
Whether the state courts would, in the construction of this
law, supply words which would give those entitled to judgments
before its passage, time to revive those judgments by scire facias,
is rendered, by the length of time which has already elapsed, a
question of not much consequence. The same principle may,
however, arise in the case of a judgment on which an execution
has issued, or which has been enjoined, where, after the lapse of
ten years from its rendition, one of the parties dies. I shall not
inquire what would be the law in such a case, but think, that in
general, where, after the passage of the act, ten years have
(3) The following are the sections of the act of 1792: -
“5. Judgments in any court of record within this commonwealth, where exe-
cution hath not issued, may be revived by scire facias, or an action of debt
brought thereon, within ten years next after the date of such judgment, and not
after; or where execution hath issued, and no return is made thereon, the party
in whose favour the same was issued, shalland may obtain other executions, or move
against any sheriff or other officer, or his or their security or securities, for not
returning the same for the term of ten years from the date of such judgment, and
not after.”
“6. Provided, That if any person or persons, entitled to such judgment, where
execution hath not issued, or where execution hath issued and no return made,
(in either case,) shall be or were under the age of twenty-one years, feme covert,
mon compos mentis, imprisoned, or not, within this commonwealth, at the time of
such judgment being awarded, whether execution hath issued thereon or not,
every such person, his or her heirs, executors, or administrators, shall and may,
notwithstanding the said ten years are or shall be expired, have the benefit,
where no execution hath issued, by reviving the same by scire facias, or by ac-
tion of debt; and where execution hath issued, and no return made, every such
person or persons, his or her heirs, executors, or administrators, may have the
benefit of other executions, or may move against any sheriff or other officer,
or his or their security or securities for the same, within five years after such dis-
abilities removed, and not after.” R. C. 1792, ch. 76, § 5, 6, re-enacted 1 R. C.
of 1819, ch. 188, § 5, 6. The court of appeals of Virginia have decided, that this
fifth section was prospective only, and did not apply to judgments existing when
it took effect. Lyons v. Gregory, 3 H. & M. 237. Day. Exor. of Yates v. Pickett,
4 Munf. 104.—[Editor.] -
276 - VIRGINIA.
Alston v. Munford.
passed away without a scire facias, it is too late to sue out that
writ.(4) . .
If, then, in this case, there had been no scire facias against the
executor, nor injunction on that judgment, I should think it too
late to proceed against the heir. But those circumstances
change the nature of the case, as will, hereafter, be more par-
ticularly noticed. - -
The next claim to be considered, is that of Buchanan, Hastie
& Co. In this case, judgment was rendered in this Court, on a
bond carrying interest, for a specific sum, although the verdict
on which that judgment was rendered, found the penalty of the
bond to be discharged by a less sum, with interest.
It is apparent, that the entry of the judgment, which appears
to have been the mere act of the clerk, deriving no sanction
from any act of the court, is a clerical misprision, and such a
judgment must have been reversed on writ of error. But
without inquiring whether it is not amendable, and whether, in
making out a record of the cause, it ought or ought not to be
considered as the real judgment,(5) I think it perfectly clear,
that the heir cannot take advantage of it. A verdict can never
be given in evidence in favour of a party, if it might not be
(4) In Hamilton v. Gee and Wife, 6 Munf. 32, where an execution was issued
within the year, and returned nulla bona, it was conceded by the appellant's
counsel, that the lapse of ten years was no bar to a scire facias; and it seems that
where a party is delayed by injunction, he is not put to his scire facias, but he
may sue out his execution within a year after the injunction is dissolved. No-
land v. Cromwell, 6 Munf. 185: and so where there is a stay of execution.
Eppes et al. v. Randolph, 2 Call, 186-[Editor.]
(5) As to the uses of the writ of error, coram vobis, see 1 Robinson’s Practice,
644–5, citing Sess. Acts, 1819–20, p. 24, ch. 28, § 1 ; also Gordon v. Frazier,
&c., 2 Wash. 130; Cole v. Pennell, 2 Rand. 174. Where the object is to cor-
rect clerical misprisions, this writ has been superseded by the practice of giving
notice to the adverse party, and amending upon motion. I R. C., 1819, p. 508,
§ 77, (passed originally in 1792,) and I R. Code, 1819, p. 512, § 88; 2 H. & M.
477; Halley v. Baird, I H. & M. 25; Beatty v. Smith et al., 1 Mun, 41;
1 Rand. 25 ; 3 Rand. 104; 5 Rand. 546; 3 Leigh, 73.−[Editor.]
MAY TERM, 1814. 277
Alston v. Munford.
given in evidence against him. The heir cannot, therefore,
avail himself of this judgment.
The claim of John M*Rae, is on a bond, dated in April 1776.
The objection to this is the length of time which has elapsed
since its date. If it be the wish of the heir, I shall direct an
issue to be tried at this bar, to ascertain whether the bond has
been paid or not. -
The claim of William Cunningham & Co., being on a bill of
exchange, does not bind the heir.
The claim of Conway Whittle, is for a legacy given to his
wife by Theodorick Munford, one of whose executors Robert
Munford was. The principal objection to this claim is, that
Robert Munford, as executor of Theodorick Munford, paid this
money to himself as the guardian of his ward, and that, as testa-
mentary guardian, he gave no bond, and, consequently, his heirs
are not bound. The legacy is a specific legacy to Frances
Munford, the wife of Conway Whittle, of a bond of John Ban-
nister, amounting to £1809. This bond was delivered to
Robert Munford, on the 2d of January, 1777, by Archibald
Carlos. -
On the same day, Robert Munford, in his account with the
estate of Theodorick Munford, charges himself with this bond.
On the credit side of that account is the following entry :
“To John Bannister’s bond, to be paid to Frances Munford,
£1809.” This last entry is under date of the 12th of July, 1778.
A letter appears to have been written by Robert Munford to
John Bannister, on the 13th of June, 1780, in which he speaks of
having received from Mr. Bannister, a payment of £1000, in paper
money, intrinsically worth only £200 ; and after expressing his
confidence that Mr. Bannister would not avail himself of that pay-
ment, adds: “Agreeable to your request, I shall make myself
debtor to my niece, for the amount of her pecuniary legacy from
her father, and consider you as debtor to me for the bond and in-
terest enclosed in your letter.” -
I do not know what other construction to put upon this entry,
than to consider it as the consent of the executor to the legacy,
278 VIRGINIA.
Alston v. Munford.
pse
and a payment of that legacy to the guardian. The terms of the
entry show that the bond was no longer to be considered as a
subject on which the executor was to act. It was to be paid to
Frances Munford, and in his executor’s account, he takes credit
for it. This credit is entered among his payments, and bears
date more than twelve months after the executor debits himself
with the bond.(6) • .
It has been contended, that this transaction, were it even un-
equivocal, could not discharge the executor, because there were
four testamentary guardians, and they must act conjointly.
Whatever force might be allowed to this argument, as applica-
ble to the commutation of the bond, which seems to be alluded to
in the letter of the 13th of June, 1780, I cannot admit its validity,
when applied to the payment made by the executor to the guar-
dian. When there is more than one testamentary guardian, it
may be necessary that they should unite in any act which disposes
of the property of the ward ; but I cannot conceive that the ab-
sence of one, disables the other from collecting a debt due to the
ward. I cannot conceive that a joint receipt is necessary to the
discharge of the debtor. This would be extremely inconvenient,
and I should require an express authority to the point, before I
could admit the principle. Whether the principle, laid down in
3 Ba. 407, that, from the nature of the thing, the authority of
guardians must be joint and several, be true, in all cases, or not, I
think it must be true in the case of receiving the money of a
ward. - .
To me, then, it appears that Robert Munford was chargeable
with this bond in his character of guardian, and as he gave no
(6) The principle seems to be well settled, that where an executor, or adminis-
trator, having assets in his hands, is also guardian of a legatee, or distributee, he
can elect to hold the share of that legatee, or distributee, in his character of guar-
dian, and thus, eaconerate the sureties in the administration bond, and charge the
sureties in the guardian’s bond. But there must be some act, from which the
election to hold the property in a different character from that in which it was re-
ceived may fairly be inferred, before the responsibility can be shifted from one
class of sureties to another. Taylor, &c. v. Deblois, 4 Mason, 131 ; Pratt, &c.
w. Northan, &c., 5 Mason, 108; Myers v. Wade, 6 Rand, 444.—[Editor.]
MAY TERM, 1814. 279
Alston v. Munford.
bond in that character, his heir is not bound. The debt remains
a debt of the first dignity against the personal estate. . [I Rev.
Code 1819, p. 389. Ibid. p. 408, § 12.]] |
The extent to which the heir is directly liable, being stated,
with the exception of Beall’s judgment, it remains to inquire how
far he is to be made liable, on the principle of marshalling
assets. . . - -
The principle on which the court proceeds in marshalling as-
sets, is discussed very much at large in a case reported in 8 Ve-
sey, jr. 382.(7) . The principle is, that a creditor having his
choice of two funds, ought to exercise his right of election in
such a manner as not to injure other creditors, who can resort to
only one of these funds. But if, contrary to equity, he should
so exercise his legal rights as to exhaust the fund, to which alone
other creditors can resort, then those other creditors will be
placed by a court of equity in his situation, so far as he has ap-
plied their fund to the satisfaction of his claim.(8)
In the application of this principle, no doubt can exist, so far as
respects creditors by specialty, in which the heir is bound. Such
a case is precisely within the principle, and is the case to which
the principle has been most frequently applied. (9) -
It has been contended by the heir, that moneys applied by
the executor in payment for lands purchased by the ancestor,
and not conveyed to him, are not to be considered as being now
chargeable on the real estate. But, in such case, the creditor had
his election to proceed by way of ejectment, and if the heir
should enjoin, and call on the executor to satisfy the debt out of
the personal estate, a court of equity would certainly not decree
such satisfaction to the injury of simple contract creditors: such
(7) Aldrich v. Cooper.—[Editor.]
(8) The same general principle on which equity marshals assets, is also laid
down in Lanoy v. The Duke and Duchess of Athol, 2 Atk. 446; Lacum v. Mer-
tins, 1 Wes. Senr. 312; Mogg v. Hodges, 2 Wes. senr. 52; Trent v. Trents, Exx.
et al., Gilmer, 188; Cheesebrough v. Millard, 1 Johns. Ch. Rep. 409.-[Editor.]
(9) Galton v. Hancock, 2 Atk. 436; Powell v. Robins, 7 Wes. 209; Haydon v.
Goode, 4 Hen. & Mun, 460,—[Editor.]
280 VIRGINIA.
Alston v. Munford.
a case, therefore, seems to come precisely within the general
principle, for the creditor had his election of two funds at law.
But this question came on to be considered in Trimmer v.
Bayne, reported in 9 Vesey, 209, where the decision was against
the heir. (10) -
The question, about which I have felt most difficulty, is, that
which relates to the claims of simple contract creditors, founded
on payments made on judgments obtained against the testator
in his lifetime. On this subject, I have searched every book of
(10) In conformity with this opinion, and with that in Trimmer v. Bayne, is
the modern case of Selby v. Selby, 4 Russel 336, 3 Con. Eng. Ch. Rep. 694, re-
viewing the cases of Pollexfen v. Moore, 3 Atk. 272; Coppin v. Coppin, 2 P.
Wms. 221; Trimmer v. Bayne, above cited; MºRreth v. Symmons, 15 Wes. 344;
Headly v. Readhead, Coper's Rep. 50 ; Austin v. Halsey, 6 Wes. 475. In Selby v.
Selby, the master of the rolls (Sir John Leach), said: “In Pollexfen v. Moore,
Lord Hardwicke is reported to have stated, that the lien of a vendor does not pre-
vail for the benefit of a third person yet his decree was, that a legatee in that
case was entitled to the benefit of the lien of the vendor. In that case, as in this,
the purchased estate was devised. Many observations have, in subsequent cases,
been made with a view to reconcile the dictum and decree of Lord Hardwicke ;
but I must admit, without success. In the case of Coppin v. Coppin the pur-
chased estate was not devised by the purchaser, but descended to his heir, and
the question there was between the heir and legatees: and the court refused to
marshal the assets in their favour. In the case of Trimmer v. Bayne, Sir Wil-
liam Grant, after referring to the dictum of Lord Hardwicke in Pollexfen v.
Moore, and stating that he had been much perplexed by that case, comes to a con-
clusion directly opposed to that dictum, and expressly states that the lien of a
purchaser is within the common principle of marshalling assets; that a person
having power, to resort to two funds, shall not, by his election, disappoint another
having one fund only. The purchased estate had in that case descended to the
heir; but it does not appear by the report with what class of claimants the heir
was contending—whether with simple contract creditors, or with legatees.”
In Selby v. Selby the contest was between the devisees of the purchased estate
and simple contract creditors, and the master of the rolls said, that the established
rule being that simple contract creditors are, as against a devisee, to stand in
the place of specialty creditors who have exhausted the personal assets, because
the specialty creditors had the two funds to resort to, so in that case the simple
contract creditors were entitled to stand in the place of the vendor against the
devisees, because the vendor had equally a charge upon the double fund of real
and personal estate.—[Editor.]
MAY TERM, 1814. 281
Alston v. Munford.
chancery reports to which I have access, and can find nothing
completely satisfactory respecting it. In the case of Finch v.
The Earl of Winchelsea, reported in a note in 3 Peere Williams,
399, it was contended by counsel at the bar, that simple contract
creditors were entitled to take the place of judgment creditors,
so far as the latter had exhausted the personal fund, and the
court did not negative the doctrine; but the case was decided on
another point, and the reporter adds a quære.
In 4 Vesey, jr.,(11) it is stated in the index, and in the
marginal note, to have been expressly determined, that assets
could not be marshalled in consequence of payments made out
of the personal fund to judgment creditors ; but on examining
the case itself, the decision of the chancellor is not found to be
so express as it is stated to be in the index and marginal note.
The implication, however, is in favour of the opinion, that
simple contract creditors are not permitted to take the place of
judgment creditors, as against the real fund. •
It has considerable weight with me, that there is not a case in
the books, nor a dictum from the bench, in which it is said,
that simple contract creditors may stand in the place of judg-
ment creditors who have exhausted the personal fund, although
the principle of marshalling assets has been discussed, perhaps,
as frequently as any other on which a court of equity acts.
That principle is continually stated, as applicable to payments
made out of the personal fund to specialty creditors and mort-
gages, but never to judgment creditors. -
There being no express authority which is satisfactory, the
question was to be considered on principle. In taking this
view of the subject, it became necessary to inquire, whether the
judgment creditor possessed, at law, his election of two funds, or
was under the necessity of pursuing the personal fund in the
first instance. -
The oldest case that I have seen on this point, is that in Dyer,
[Bricknold v. Owen, 20s a,] which was cited by the counsel for
- (11) Sharpe v. The Earl of Scarborough, 4 Ves, jr. 538-[Editor.]
Vol. I.-2 N - -
282 2 VIRGINIA.
Alston v. Munford.
the plaintiff. In that case, an elegit appears to have been
awarded against the terre-tenants, and it is to be presumed, that
no previous scire facias issued against the executor. But the
question was not made, and the reporter adds a quaere, whether
there ought not to be first a scire facias against the executor, and
on nihil returned, then a scire facias against the terre-tenant,
as was decided in 7 Hen. IV. But as such a scire facias on a
recognizance is given in the judicial register, he doubts if the
law be not the same as to judgments. In a note to the same
report, it is said to have been afterwards stated in another case,
to have been the course of the exchequer, not to charge the lands
in the hands of the heir for the debt of the king, until the per-
sonal estate be exhausted.
In Carthew, 107, it is stated expressly by counsel, to be admit-
ted law, that a scire facias cannot issue against the heir until the
personal estate shall have been exhausted. In support of this
position, many decisions from the year-books are cited, and it is
not contradicted by the court, or by the counsel. This position
is introduced into Bacon, and stands in the new edition as law,
nor is any opposing principle laid down, or any contrary authority
cited.
In 14th Viner, title Heir, letter R. sec. 2., it is stated, that an
application was made to the king's bench, for a scire facias
against the heir before process against the executor, which was
refused. -
The weight of authority, therefore, appears to be decidedly in
favour of the opinion, that the judgment creditor cannot proceed
against the heir until he has exhausted the personal estate.
I am the more satisfied with these authorities, because they
appear to me to lay down the positive rule in strict conformity
with principle. - -
The writ of elegit, in virtue of which the land is charged by a
judgment against the ancestor, does not issue singly against the
land, but orders the sheriff to deliver all the chattels, (oxen and
beasts of the plough excepted,) and a moiety of the lands, to the
creditor. In his commentary on this statute, 2 Inst. 95, Lord
MAY TERM, 1814. ... 283
Alston v. Munford.
Coke says, that if the chattels be sufficient to satisfy the debt, the
land ought not to be extended. Upon viewing the writ of elegit,
given by our act of assembly, I have no doubt but that the same
rule would regulate the conduct of the sheriff.(12)
Since then, upon an elegit issued on the judgment against the
ancestor, the personal estate is first liable, it would seem to be
reasonable that the same judgment would, after his decease, af-
fect his estate in the same order, and that the personal fund should
be applied first to its discharge.
If this be the law, then the judgment creditor has no election.
He is under the necessity of proceeding, in the first instance,
against the personal estate, and the principle on which assets are
marshalled, would not apply to the case.
If there be two mortgagees, A, the prior mortgagee, upon
two tracts, and B, the subsequent mortgagee, on one only of
those tracts; if A should appropriate to his debt the land mort-
gaged to B, then B would be permitted to take the place of A,
with respect to the other tract. But if, by the terms of A's
mortgage, he was bound first to apply the tract mortgaged to B,
then B would not be allowed to take the place of A. The rea-
son on which he could, in the case first put, be permitted so to
do, would cease.
I am, therefore, of opinion, that in marshalling assets, simple
contract creditors cannot charge the lands for so much of the per-
sonal fund as has been applied to the payment of debts, due by
judgments obtained against the ancestor.
It is very possible that this decision may, in this case, be ex-
tremely unfavourable to the heir.
If the personal estate must be exhausted before the judgment
creditor can proceed against the real estate, so that the proceeding
against the heir is dependent on the proceeding against the ex-
ecutor, it would seem to follow, that the act respecting the re-
newal of judgments, ought not to be so construed as to bar a scire
(12) The writ of elegit given by the Virginia statute, is the same as that given
by the English statute of 13 Edw. 1, c. 18. For the form of the writ, see I R. C.,
1819, p. 525-[Editor.]
284 VIRGINIA.
Alston v. Munford.
jacias against the heir, provided the creditor has been employed
in pursuing the personal estate ; and, especially, if a court of equity
has prevented him from exhausting the personal estate.
It is with regret I give gentlemen of the bar additional trouble.
But I was, at the argument of this case, so satisfied that the judg-
ment could not be revived against the heir, as ten years had
elapsed since its rendition, and since the passage of the act, that I
did not sufficiently advert to those other arguments which respect-
ed the claim of Beall’s representatives. This opinion was not
shaken until I considered that question in connexion with the
right of the creditor to proceed immediately against the heir.
It was then out of my power to recall the other points, on which
the liability of the heir, for the balance of Beall’s judgment, de-
pends.
The arguments which have been urged at the bar, to show that
the heir is not liable, on account of the payments made to the credi-
tors of Theodorick Munford, are, in my opinion, conclusive. I
do not think the devastavit fixed ; nor do I think him bound by
the report in chancery, as by an exhibit produced, and relied on,
by him. That report is to be considered as an exhibit admitted
by both parties, to be substantiated in the place of a report made
to this Court by one of its commissioners. It is, consequently,
open to all the exceptions which might have been made to it, if
returned directly to this Court.
The objections made to the jurisdiction of this Court, are not
deemed sufficient to prevent a decree on the interests of all the
parties. In addition to other considerations urged in favour of a
decision of the whole subject, the argument founded on the bill
for marshalling assets, is conclusive. The creditors, who have a
direct charge on the lands, must come in on that fund before it can
be touched by the simple contract creditors, and, consequently, the
Court must direct them to be satisfied, before it can apply the
surplus to creditors by simple contract. The case, then, is like
that of a subsequent mortgagee wishing to foreclose. All prior
incumberancers must be brought before the court and satisfied,
before he can obtain a decree.
MAY TERM, 1814. 285
Shore v. Jones.
—-º
NotE, by the Chief Justice. This cause came on afterwards
to be argued, on the question, whether the heir was liable for
profits received before the filing of the bill : and the Court deter-
mined that he was not : but that opinion is lost. .
}
THE UNITED STATES v. Jon Es ET AL., and SHORE’s ExECUTort
. - v. Jon Es ET AL.
Before Hon: JOHN MARSHALL, Chief Justice of the United States. -
HoN. SAINT GEORGE TUCKER, District Judge.
A bond was given to J. S., the collector of the district of Petersburg, under the
2d section of the embargo act of the 22d of December, 1807, and the bond -
being forfeited, suit was instituted upon it, in the district court, by the collector.
Before judgment was obtained, J. S. died, and T. S., his deputy collector, con-
tinued in the discharge of the duties of the office until the 14th of December,
1811. On the 30th of November, 1811, judgment was rendered for the penalty
of the bond against one of the co-obligors. On the 26th of November, 1811,
J.J. was appointed collector for the same port, but did not qualify until the 14th
of December, 1811. The defendant obtained a writ of error to the judgment of
the district court, and the judgment of the district court was affirmed in the court
above. The amount of the penalty of the bond was then paid into the circuit
court, and, thereupon, T. S., executor of J. S., filed his petition, claiming a moiety
of the moiety of the amount so paid, which the law directed to be distributed
among the revenue officers of the district where the penalty was incurred.
There being no naval officer for the district of Petersburg, the only revenue
officers were the collector and surveyor. Held: 1. That although J. S. died
before judgment, yet as his deputy continued to act as such until after judg-
ment, the rights of J. S. are considered as preserving the same validity as if he
had been at that time in life, and discharging the duties of his office. The
rights of J. J., his successor, could not accrue until he had qualified as such.
2. That the judgment of the district court having been affirmed, the rights of
all persons under it continued the same as if the writ of error had never been
286 VIRGINIA.
Shore v. Jones. *
sued out. 3. That the proportion of the penalty given to the collector, belong-
ed to the collector who was in office when the bond was given, and who had
prosecuted it to judgment, and not to the collector who happened to be in office
when the money was paid.
ON the 23d of November, 1808, an embargo bond was exe-
cuted at the custom house of Petersburg, by Thomas Pearse,
master of the ship Sally, of Philadelphia, and others, his sureties,
to the United States, in the penalty of $46,300, upon the usual
conditions, viz., that if the cargo of the said vessel should be reland-
ed in the United States, the danger of the seas excepted, then the
obligation to be void, otherwise, to remain in full force. The
bond was, in fact, given to John Shore, then collector of the port
of Petersburg, in pursuance of the second section of the embargo
act of 1807, ch. 5. No certificate of the relanding of the cargo of
the vessel being transmitted to the secretary of the treasury, Shore,
in pursuance of instructions from the treasury department, brought
suit on the bond, as forfeited, in the district court for the district of
Virginia, against George Pegram, jr., one of the obligors, to recover
the penalty. Before judgment was recovered on the bond, John
Shore died, viz., on the 30th of October, 1811, and Thomas Shore,
who had charge of the office at the time of the death of John
Shore, as deputy collector, continued to act as deputy gollector
until the 14th of December, 1811. After the death of John
Shore, and before the 14th of December, 1811, to wit: on the
30th of November, 1811, judgment was rendered in the district
court, for the penalty of the bond, against Pegram. Pegram ob-
tained a writ of error to the circuit court, from the judgment of
the district court, pending which he died, and the writ was re-
vived in the name of his administrator. On the 5th of June,
1813, the judgment of the district court was affirmed. Joseph
Jones, qualified as collector for the port of Petersburg on the 14th
of December, 1811, but his commission bore date the 20th of
November preceding, and, consequently, a few days antecedent
to the rendition of the judgment in the district court. i
At the time that the bond was executed, Andrew Forborne
MAY TERM, 1814. 2S7
Shore v. Jones.
was surveyor of the district of Petersburg, for the port of City
Point. Forborne died in office, after suit brought, but before
judgment, and John H. Peterson qualified as his successor, on
the 16th of March, 1811. At the May Term of this Court, 1814,
Pegram’s administrator paid into court, the whole amount for
which judgment had been rendered against his intestate, where-
upon cross petitions were filed by the district attorney, in behalf
of the United States, praying the whole sum to be paid to him,
or deposited in bank to the credit of the treasurer of the United
States: by the present collector and surveyor of the district of
Petersburg: and by the representatives of the deceased collector
and surveyor, praying a payment over, and distribution of the
sum so recovered, according to the rights respectively claimed
by them. A bill was also filed on the chancery side of the cir-
cuit court, by the representatives of the deceased collector and
surveyor, against the present collector and surveyor, and the
clerk of the court, praying a moiety to be paid over to them, or
such other portion as they were entitled to, by law. Upon the
hearing of the cross petitions, the circuit court overruled the
prayer of the motion of the district attorney, the court being of
opinion, that the United States were entitled only to a moiety
of the money, and that the same ought to be paid to the collec-
tor of the district on behalf of the United States. Upon the
question presented by the bill, and answer in the case of Shore’s
Executor v. Jones, whether the embargo laws should be inter-
preted to give the reward to the collector who was in office when
the bond was taken, or to the collector officiating when the
penalty was paid, the Chief Justice delivered his opinion, as
follows: present, MARSHALL, C. J., and TUCKER, J.
MARSHALL, C. J.-There are some incidental points in this
case, which, though not relied upon, it may be proper to dispose
of, in the first instance, for the purpose of simplifying the
question.
The deputy of John Shore, having continued to act as his
deputy, until the judgment was rendered in the district court,
ess VIRGINIA,
Shore v. Jones.
the rights of John Shore are considered as preserving the same
validity, as if he had been at that time in life, retaining his office
and performing its duties. The rights of Joseph Jones, could
not commence, until he became the officer.
The judgment of the district court, having been brought into
the circuit court, not by appeal, but by writ of error, and having
been affirmed, the rights of all the parties under it, remain the
same as if the writ of error had never been sued out. The con-
test, then, in this case is, between the representatives of the
person who was collector when the penalty was incurred, and
who remained the collector, until the judgment was rendered ;
and the person who is collector, when the distribution of the
penalty is to be made. - w
This question depends in a great degree, on the true construc-
tion of the act, “to regulate the collection of duties on imports
and tonnage,” passed the 2d day of March, 1799,(1) since this
penalty is to be distributed according to the rules prescribed in
that act. In construing it, the attention of the Court has been
directed to the phraseology of the 89th section, and it has been
contended, very truly, that the word “collector,” throughout
that section, applies to the collector for the time being, only.
Yet, this construction must be sustained, rather by the necessary
meaning, than by the grammatical arrangement of the sentence;
rather by the life, than by the dead letter of the law. “The
collector, within whose district the seizure shall be made,” &c.
It would seem, if we examine this sentence, without considering
the nature of the duty intended to be performed, that the person
who commenced the duty, must end it. “The said collector,”
&c., that is, the collector who instituted the suit, &c. But when
we look to this duty, the contrary construction is at once adopted.
The duty is entirely official, not in any degree personal, and
must be performed by the tenant of the office.
But suppose the collector who receives the money, dies before
payment and distribution. This duty must necessarily be per-
(1) Story's Laws U. S., vol. 1. p. 573 to 664, inclusive—[Editor.]
&
MAY TERM, 1814. 289
Shore v. Jones.
formed by his executors, not by the collector for the time
being. -
The 91st sec. distributes the fines, forfeitures, and penalties,
imposed by the act. It declares that “one moiety shall be for the
use of the United States, and be paid into the treasury thereof,
by the collector receiving the same: the other moiety shall be
divided between, and paid in equal proportions to, the collector,
and naval officer of the district, and surveyor of the port, wherein
the same shall have been incurred, or to such of the said officers
as there may be in the said district.”
Were this clause to be construed, without reference to the ob-
ject of the Legislature, it will readily be admitted, that the officer
for the time being, and the officer at the moment of distribution,
is the person designated by the law. But no legislative act, no
instrument of any description, is construed without regard to
the object and intent of its framers, as manifested by itself.
Language is too imperfect to admit of such a rule. The same
words, in different connexion have a different import. The in-
tention, therefore, must be regarded ; and to find that intention,
whatever relates to the subject must be inspected.
If the moiety of this penalty be a gratuity to the officer of the
district, or a donation to the office, then there is nothing to con-
trol that construction, which the words most naturally import.
If it be not a gratuity, but a compensation for service, or a stimu-
lus to those who are to perform the service, and on whom the
stimulus is to operate, and if such officers will come within the
description of the law, they are the persons designated by the
law. -
The attempt to prove that this is not a mere donation to the
officers, would be a waste of words and of time. If it be a com-
pensation for services, or a stimulus for the performance of ser-
vices, it must be bestowed on those who have performed, or who
are expected to perform, the services which the law intends to
remunerate. f -
Penalties are imposed for the purpose, not if enriching the
treasury, but of enforcing the execution of laws, and the legisla-
VoI. I.-2 O
290 . VIRGINIA.
Shore v. Jones.
ture, is, therefore, uniformly liberal in its compensation out of
penalties, to those who have contributed to the punishment of
offenders, and, through that medium, to the enforcement of the
law. Any thing like a rateable portion, therefore, of reward to
service, is not to be expected ; but the kind of service for which
the reward is intended, must be looked for and discovered when
the reward is claimed by different persons. The same inquiry
must be made, if we consider the reward as a stimulus to the
officer.
On the part of Mr. Jones, it is contended that, in the view of
the legislature, the whole transaction, from its commencement,
to its final termination ; from the commission of the act, on which
the penalty is to accrue, to the receipt of the money, is to be
considered as one entire thing, consisting of different parts,
deemed equal by the legislature ; and that the compensation is
bestowed on the person who happens to perform the concluding
part of the service, that is, to receive the money, or who is then
in office. This construction, which is admitted to be rather
favoured by the words of the distributing clause of the section, is
said to be equally consistent with the intent and spirit of the
Jaw 5 since the service is equally meritorious with any other
that is performed, and since this construction will, equally with
any other, stimulate the officer to exertion.
On the part of Mr. Shore, it is contended, that the duties in-
tended to be stimulated and rewarded, terminate with the judg-
ment, if not before, and that the receipt of the money has no
connexion with the right to a distributive share of it.
In arguing the merits of the claimants, it has been contended,
that no service is to be performed, previous to the judgment, of
such importance as to give the officers of that period a superior
claim to their successors, or to justify an opinion, that the legis-
lature intended the reward to stimulate those services, which
were to be performed anterior to that period, rather than such as
might afterwards become necessary for the collection of the
money. - -
In support of this proposition, the argument has been confined
MAY TERM, 1814. 291
Shore v. Jones.
to the very case before the Court; to an embargo bond. But it
is to be recollected, that this is only one of many cases, to which
the same principle of distribution applies. The act of 1799,
which gives the principle, creates a great number of penalties
and forfeitures, and adapts their distribution to the nature of those
penalties and forfeitures, and to the services which are to be ren-
dered for their detection and punishment. The act of 1809 (2)
then, adopts the rule of distribution prescribed in the act of 1799.
Perhaps the persons favoured by that rule, may be most certainly
discerned by looking something further into the nature of the
service to be performed by those who, under that act, might
elaim reward. -
These penalties are imposed, some for acts of omission, others
for acts of commission. In cases of omission, the labour of the
officer is not considerable, but is perhaps essential to the security
of the revenue. In all of them this attention must be kept
alive, in order to observe the conduct of those who are transac-
ting business in the office, and he must be on the alert to take
care that all the formalities prescribed by law are observed. If,
in any instance, they are neglected, he must take care that mea-
sures are pursued which shall enable the United States to con-
vict the offender.
Those of commission are very numerous. It would be tedi-
ous to recapitulate them, but it may not be improper to mention
one or two as examples.
If any part of the cargo of a ship bound to the United States,
shall be unladen within the limits thereof, without authority, the
goods are forfeited, and the master and the mate shall respectively
pay $1000. So, if any person shall assist in such unlading, he
forfeits treble the value of the goods and the vessel which shall
receive them, if they be put on board a vessel. [Act of 1799,
sec. 27, 28.]
If a part of these penalties and forfeitures be given to the
revenue officers, what are the services it is given to remunerate,
(2) Act to interdict commercial intercourse, 2 Story’s Laws U. S. 1120, sec.
18–LEditor.]
292 VIRGINIA.
Shore v. Jones.
and what are the services the reward is intended to stimulate 2
To discover these frauds, the officers of the revenue must be
watchful, they must be on the alert. If they are not, the frauds
will be committed, and they will escape punishment. It is
detection which saves the law from infraction, and secures the
punishment. $ -
So, there is a penalty for sailing from a district before entry,
or for not making a full entry within a limited time. These
penalties are inflicted for the security of the revenue, and they
require the attention of the officers to vessels arriving within
the district, in order to secure the observance of the law.
So, penalties and forfeitures are incurred, if a vessel, sailing
from one port to another, does not obtain at the port of depar-
ture, certain certificates required by law, and exhibit those cer-
tificates at the port of delivery within a limited time after her
arrival. It is obvious, that the enforcement of this provision
depends entirely on the officers at the time of incurring the
penalty, and of its detection.
Thus too, baggage is exempted from duty, and certain forms
are to be observed by the persons claiming it, but the officer
may examine the baggage, and if upon examination any article
be found subject to duty, not mentioned by the owner, the arti-
ele is forfeited, and a penalty of treble the value imposed on the
person committing the offence. Again we find the law en-
forced by the watchfulness and attention of the officer.
It is unnecessary to continue this examination of particular
cases. Go through the law, and it will be perceived that the
government rests for the security of its revenue on the fidelity
and vigilance of those officers who act at the time of the offence,
at the time of its detection, and during its prosecution.
If we turn from these to the embargo laws, in order to
ascertain the motives which induced the legislature to adopt the
principle of distribution, prescribed in the act of 1799, we shall
derive some aid from looking into other penalties than that
incurred by the breach of the bond.
Any vessel which sails from a port of the United States
MAY TERM, 1814. 293
J
Shore v. Jones.
without a permit, or which sails to a foreign port, is liable to
forfeiture.
Any foreign vessel, taking on board any specie or cargo, is
liable, with the specie or cargo, to forfeiture, and every person
concerned in such unlawful shipment, is liable to a penalty, not
less than $1000, nor more than $20,000.
In these, and in many other cases, the most entire reliance is
placed on the officers of the revenue, to secure the law from
violation by their vigilance ; and, certainly, it is reasonable to
suppose, that it was the object of the legislature to stimulate this
vigilance by rewarding it. -
If, in the particular case of an embargo bond, there was really
no merit in the revenue officers who took and prosecuted the
bond, this might be a reason with the legislature for not classing
it with cases in which such merit exists, but can furnish no
reason to the Court for withdrawing it from the influence of
those cases. There is not, however, this total destitution of
merit which has been insisted on. A degree of skill and atten-
tion is requisite in taking the bonds, to avoid the object being
defeated, (as has happened in this Court in several cases,) (3) by
the officers’ mistaking the proper form in which they should be
taken. The vessel and cargo must be valued, the bond must
conform to that valuation, and evidence of value must be fur-
nished on the trial. The taking of the bond is preceded by that
vigilance, which is requisite to prevent the vessel from sailing
without giving the bond. These considerations might be suf-
ficient to induce the legislature to leave this penalty on the
footing of all others, incurred under the different acts of con-
gress, on this subject, and under the duty law.
The Court will now pass from the services which it is reason-
able to suppose the legislature intended to reward, in order to
examine the provisions and phraseology of the law, for further
lights on this question, whether services up to the judgment, or
(3) Dixon v. The United States, ante, p. 177; The United States v. Gordon
& Shepherd, ante, p. 190; The United States v. — , ante, 195,-[Editor.]
2.94 VIRGINIA.
Shore v. Jones.
subsequent to the judgment, were the objects of this legislative
bounty.
It is first observable, that the bounty is payable in equal
proportions to the collector, naval officer, and surveyor. If the
receipt of the money is the fact for which compensation is made,
why this distribution ? Why are the naval officer and the
surveyor put on an equal footing with the collector P They incur
no portion of the risk or trouble incurred in receiving and
paying away the money, nor do they participate in the commis-
sion allowed for collecting duties.
If, however, this compensation is intended, not as a reward
for collecting the money recovered, but for the vigilance required
for the execution of the law, the motives to this distribution
are obvious. They are equally sentinels on the port, equally
on the conduct of those who are to be watched; and having, on
this account, equal claims, are thus prevented from entertaining
those reciprocal jealousies which might seduce them to thwart
the operations of each other, and, perhaps, impede detection, if
the particular informer engrossed the prize.
The reward is given, “to such of the said officers as there
may be in the said district.” As there may be when 2 Cer-
tainly, when the reward is earned. Suppose, after judgment,
and before the receipt of the money, one of these officers should
be discontinued by law. Would he lose any share of the
penalty P Suppose another officer, a naval officer in the dis-
trict of Petersburg, should be added. Would he be entitled to
a share of the penalty It is admitted, that this is merely
stating the question in controversy, but it is stating in a form
which leads, in some measure, to an opinion on it.
If the revenue officers, who are the legal sentinels, and whose
duty it is to watch, do not detect the offences, the reward is
divided between the informer, and the unsuccessful sentinels.
Yet the informer has nothing to do with collecting the money.
In the case of the officers of the revenue cutter, who are enti-
tled to a moiety of the penalty, if it be recovered on any infor-
mation given by them, it seems to be admitted, that the officers
MAY TERM, 1814. 295
Shore v. Jones.
at the time of discovery, are entitled to claim the reward. This
is admitted, because they claim solely in the character of infor-
mers. Iłut the words applicable to them, are the same as those
applied to the revenue officers, and not more susceptible of an
interpretation, according to the nature of the case.
The clause respecting the witness, would, unquestionably, be
equally proper, whether the interest of the person called on, be
certain or contingent : but there is something in its language,
which deserves some, though not much attention. The share,
says the law, to which the witness would otherwise be entitled,
shall revert to the United States.
The right of the United States, is inchoate on the commission
of the offence, and is consummated by the judgment. The
term revert, which is here used, indicates, that in the mind of
the legislature, something was done, in consequence of which,
a portion of this right had passed out of the United States, which
returned on the fact of calling the person to whom it had passed,
as a witness. And the same words are applied to an officer of
the revenue, an officer of the revenue cutter, and a common
informer. In such case, the share to which the witness would
otherwise have been entitled, reverts to the United States.
It is more worthy of remark, that the appropriate compensa-
tion for receiving money, is a commission on the money received,
to be retained by the receiver. The appropriate and usual re-
ward for those who detect offences against the laws, and prose-
cute them to punishment, is a part of the penalty, and the -
language and provisions of this section, seem to proceed on that
idea. It directs, that “one moiety shall be paid to the United
States, by the collector receiving the same ; the other shall be
divided in equal proportions between the collector and naval
officer of the district, and surveyor of the port wherein the same
shall have been incurred.” If the part of the collector had
belonged to him who received the money, he would not be di-
rected to pay it to the collector of the district, but to retain it
himself. The language of payment and retainer, are too distinct
to be confounded with each other.
296 - VIRGINIA.
- Shore ºv. Jones.
It is perfectly understood, that this phraseology is to be ac-
counted for, by the fact, that the suit may be prosecuted, and
money may be received by the collector of the district, in which
the seizure was made, while the beneficial interest is in the reve-
nue officers of the district in which the penalty was incurred.
But this does not impair the argument. If the receipt of the
money induced the reward, why is it not bestowed on the
officer who collects it 2 Why on the officer who does not, and
who has, in law, no right to collect it?
It would seem, as if the language and provisions of the law,
excluded the idea, that any part of the penalty was intended as
a compensation for its collection. -
The idea that this is a gift bestowed on the office for the pur-
pose of enhancing its emoluments, is not sustained by the gene-
ral course of legislation on the subject. If the acts respecting
the emoluments of the office of collector be examined, it will
be found that the legislature has required the collector to show
regularly the amount of the commissions, has reduced the per
centage by several successive acts, and has finally directed that
the emoluments of office shall not exceed a specific sum. This
regulation does not comprehend penalties, but it shows that the
share of penalties is not given to the office for the purpose of
annexing value to it, but is given to the individual to stimulate
and to reward his services in enforcing the execution of the
laws.
The counsel for Mr. Jones have, with great force of argument,
called on their opponents to say at what time a right to a share
of the penalty vests in the individual, and have urged the diffi-
culty of doing this, as a reason for fixing on the moment of dis-
tribution as that at which the right vests. This difficulty is not
imaginary, but is felt as a real one. In this case, however, the
only contest is between those who claim at the time of the
judgment, and those who claim after it. There are some rea-
sons, in addition to those which have already been urged, for
supposing the judgment to fix ultimately the rights of the par-
ties. The judgment changes entirely the nature of the right.
MAY TERM, 1814. 297
Shore v. Jones.
From a claim to a penalty or forfeiture depending on evidence,
the right to which is contested, it becomes a positive debt, and
the right is vested absolutely in the United States. It would
seem reasonable that all rights which were, pending the action,
contingent and uncertain, should then, likewise vest in the per-
sons entitled to them. No further proof is requisite, no further
vigilance necessary, no further controversy exists, a claim to a
penalty is converted into a debt. If collection may be delayed
by fraudulent covers of property, it is equally the case in every
other debt, and furnishes in no other instance a motive for giving
more than a commission. -
Neither can the idea, that because this is a perpetual office,
the officer can be considered as always in being under contem-
plation of law, as in the case of the king or other sole corpora-
tion, avail the plaintiff. The office is not hereditary. It is filled
by individuals appointed by the executive, and between the re-
moval of one officer, and the appointment of another, a long
interval may elapse. Though the office never dies, the indivi-
duals who fill it do, and as their emoluments are considered in
the light of compensation for services, the rewards of services
rendered by one, ought not to be bestowed on another.
The result of the best consideration which the Court has been
able to bestow on the subject, is, that the acts, taken altogether,
show the intention of the legislature, in giving to its revenue offi-
cers a portion of the penalties and forfeitures, inflicted for a viola-
tion of the embargo laws, to have been to stimulate those officers
to vigilant exertion of duty in detecting offences and prosecuting
the offenders to conviction, and that those alone are entitled to
those rewards who have performed the service. This intention
is sufficiently apparent to give to those words of the distributive
section a construction different from that which they most natu-
rally bear, if separated from every other part of the act, and to
apply them to those who were officers when the service was
performed, not to those who are officers when the distribution is
to be made.
VoI. I.-2 P
298 VIRGINIA.
Shore v. Jones.
NotE.-So far as the claim of the deceased collector was concerned, it will have
been perceived, that although John Shore died a few days before the judgment was
rendered, yet, as the duties of the office continued to be discharged by his deputy,
until subsequent to its rendition, the court held that John Shore virtually sur-
vived the judgment, and that the Chief Justice relied strongly on that fact as es-
tablishing the validity of his claim. This doctrine of constructive survivorship,
however, did not apply to the claim of the representative of Forborne, the late
surveyor, who died long before the judgment was rendered, and whose successor
had been in office many months previous thereto. After the above opinion was
delivered, the court being divided on the question, whether the remaining moiety
of the penalty, (the United States being entitled to the other moiety,) should be
paid to the collector then in office, to be by him distributed according to law, as
the court should direct, or without any direction on the subject, certified that
question to the supreme court. Upon the hearing of the suit in chancery, on the
bill, answers, and proof, in which none of the facts were controverted, a question
occurred before the court, whether Forborne's representative was entitled, in right
of his intestate, to receive the moiety of that portion of the penalty which was, by
law, to be distributed among the several revenue officers of the district wherein
the penalty was incurred: upon which question the court was divided, and the
same question was certified to the supreme court. Mr. Justice STORY, in deliver-
ing the unanimous opinion of the court, said, “ That the right of the collector to
forfeitures in rem, attaches on seizure, and to personal penalties on suits brought,
and in each case it is ascertained and consummated by the judgment; and it is
wholly immaterial whether the collector die before or after judgment. And they
are further of opinion, that the case of the surveyor is not, in this respect, distin-
guishable, in any manner, from that of the collector. We are, therefore, of
opinion, that the representatives of the deceased collector and surveyor, and not
the present incumbents in office, are entitled to the distributive shares of the moiety
of the money now in the registry of the circuit court.” The supreme court cer-
tified to the circuit court, as their opinion, 1. That in the case of the United States
v. Jones et al., the moiety of the money now remaining in the custody of the
circuit court, in the proceedings in the case of the United States, appellants, v.
Joseph Jones and Others, mentioned, should be paid to the said J oseph Jones,
collector of the district of Petersburg, to be by him divided, in equal proportions,
between Shore's Executor and Forborne's Administrator. 2. That in the case of
Shore's Executor et al. v. Jones et al., the representative of the late surveyor, in
right of his intestate, was entitled to receive one moiety of that portion of the
penalty in the proceedings mentioned, which is, by law, to be distributed among the
several revenue officers of the district wherein the penalty was incurred. See I
Wheaton, 462; 3 Con. Rep. Sup. Court U. S., p. 624.—[Editor.]
Çittttit (£0titt of tige Jämitti'ſ Sºtates.
w
NORTH CAROLINA, SPRING TERM, isis.
BEFORE
HoN, JOHN MARSHALL, Chief Justice of the United States.
CASE of THE FoRTUNA. KRAUSE ET AL CLAIMANTs.
A vessel, sailing under a neutral flag, was captured by an American private armed
schooner, and brought into a port of the United States for adjudication. The
vessel and cargo were libelled, by the captors, as enemy’s property, and a claim
was interposed, by neutrals, who appeared, by the ship's papers, to be the
proprietors; but after the arrival of the vessel in the United States, other papers
were found, artfully concealed, tending to show that the vessel and cargo were,
in truth, British property; Great Britain and the United States being then at
war. The concealed papers examined and compared with the ship's papers,
and the vessel and cargo condemned as enemy’s property : but order for further
proof made, if an appeal should be taken, leaving the question of its admissibility
to be determined by the supreme court.
CIRCUIT COURT of the United States for the district of
of North Carolina. Appeal from the sentence of the district
court.
The Fortuna, sailing under Russian colours, left Riga on the
3OO .* NORTH CAROLINA.
The Fortuna. Rrause et al. Claimants.
2d of September, 1813, for London, where she arrived ; and from
thence, sailed on the 18th of November, 1813, in ballast, on a
voyage to the West Indies, took a British convoy at Portsmouth,
in England, and proceeded with it to Barbadoes, and thence to
Jamaica. From thence she sailed to the Havanna, where she
arrived on the 12th of February, 1814; took in a cargo of the pro-
duce of Cuba, and left the port of the Havanna on the 25th of
March, 1814, under protection of a British convoy, bound to,
Bermuda. After parting with the convoy, she was captured on
the 19th of April, 1814, in the latitude of 38°, west long. 60°, by
the private armed schooner Roger, and brought into Wilming-
ton, North Carolina, for adjudication. The master, and all the
crew, except the mate and two seamen, were taken out, and kept
on board the privateer until the 14th of August, when they were
sent in to be examined. ſº
A claim was interposed by the master for the ship, as the pro-
perty of Martin Krause of Riga, one of the house of trade of
M. & J. Krause, of that place, for 1520 boxes of sugar, and 144
quintals of Campeachy wood, as the property of M. & J.
Krause : for 160 boxes of sugar, as the property of J. F. Muh-
lenbruck, as the master understood, “a native of Germany, and
of late usual abode at Hamburg,” and who went out in the
vessel, and shipped the whole of the cargo ; and for small por-
tions of the cargo, as the property of the master, and of a
Swedish captain, Steinmeitz. •.
There were found on board, a certificate of the built of the
ship in Finland ; a passport or sea brief to proceed to London,
granted at Riga, by the harbour-master and commander at that
place; a bill of sale of the ship, from P. A. Severnon & Son, of
Riga, to Martin Krause ; and certificates of naturalization of the
crew. The cargo was documented in the usual formal manner.
The prize master, in his affidavit, on delivering up the ship’s
papers, sworn to on the 7th of July, 1814, states, “that the said
papers were found in the said ship, at three different periods,
and that on coming into his possession, or on discovery thereof,
he proceeded with them forthwith, and without delay, to the
SPRING TERM, Isis. . 301
The Fortuna. ICrause et al. Claimants.
admiralty office, &c., and that the last parcel of papers were, on
the 8th of June last, being a considerable time after the arrival
of the said ship, found concealed in a tin box, carefully let into
an old piece of timber, to wit, part of the frame or belfrey of
a vessel, by means of a mortice hole, which said mortice hole
was covered with a piece of wood, in a way to elude observation,
and which said piece of timber was stowed away among the
ship's firewood,” &c. Certain papers were also found in the
master’s trunk, after the ship’s arrival.
In his examination, on the standing interrogatories, the master
swore, that he was employed and appointed by a Mr. Hoffen-
gartner, who gave him possession of the vessel in London, in
1812; that the said Hoffengartner was then travelling; and died
about March 1813; but his place of abode, birth, and country,
the master did not know. That Messrs. Bennett & Co. of Lon-
don, gave him his instructions, and informed him, that Martin
Krause had directed them to fit out the ship, and order her to
the Havanna. That the ship had before gone by some other
name, which he did not recollect. That a bill of sale of the
ship was made to Martin Krause, by the person from whom the
said Krause purchased, but whose name he did not recollect, nor
the time when it was made, nor in the presence of what wit-
nesses; and there was no engagement different from, or in ad-
dition to, the bill of sale. He assigned, as his reasons for placing
the papers in the piece of wood, that they were partly papers
not belonging to the vessel, and partly private letters, and he
did not wish to have them mixed with the ship’s papers, as it
might possibly create confusion, and that they might be put
aside, when boarded by any private armed vessels, and, if there
should be a necessity, produced when called for.
The ship and cargo were condemned in the district court, and
the claimants appealed to this Court.(1)
(1) The editor, not having access to the record in this case, which was decid-
ed in North Carolina, has adopted the statement published in 2 Wheat. Rep.,
p. 161. See note of the decision of the supreme court, at the end of this case.
302 ; NORTH CAROLINA.
The Fortuna. Krause et al. claimants. -
MARSHALL, C. J.—The Fortuna, a vessel sailing under Rus-
sian colors, was captured on a voyage from the Havannah to
some port in Europe, by the American privateer Roger, and
brought into the port of Wilmington, where she was libelled by
the captors as enemy’s property. The vessel and cargo were
claimed as belonging to neutrals. Both were condemned in the
district court as prize of war, and from that sentence the claim-
ants have appealed to this Court. -
The ship’s papers, which were found at the time of capture,
represent the vessel as Russian, and the bills of lading and other
papers, relative to the cargo, represent that as the property of the
neutral claimants. The testimony of the captain and crew com-
ports with these papers. There is, indeed, some apparent con-
tradiction in the affidavits given at different times by the cap-
tain. In his claim, and in one of the affidavits, he says that the
Fortuna was the property of Martin Krause; in another affidavit
he states her to be the property of M. & J. Krause. Now as
M. & J. Krause were partners in trade, both Russians, and both
residing at Riga, it was perfectly immaterial whether the vessel
belonged to one or both of them, and it is entirely probable, as
M. & J. Krause were the ostensible owners of the principal
part of the cargo, that this inaccuracy of expression in, one of
the affidavits might escape him inadvertently, or might, as has
been stated, be the fault of the translator or person who wrote
the affidavit. Although such negligence in those who give tes-
timony in any cause, must be very reprehensible, it would be
punishing it rather severely, even if it were certainly commit-
ted by the witness, to confiscate a ship in consequence of it.
I should, therefore, not lay much stress on that circumstance.
But while the Fortuna lay in the port of Wilmington, a canister
containing several papers was found concealed in an old piece of
timber. It appears that in the port of Havanna, just before the
sailing of the vessel, the carpenter had been taken into the cabin
by the captain, who brought in at the same time this piece of
wood. They were locked in together, and while there, the
canister was let into the timber, and a piece of wood morticed
over it for the purpose of concealing it. The timber was then
SPRING TERM, 1815. 303
The Fortuna. Krause et al. Claimants.
thrown into the hole of the ship. The papers, thus concealed
have a material influence on the cause.
The claimants represent Messrs. Bennett & Co. of London, to
be the agents of M. & J. Krause of Riga, with respect to the
vessel, the voyage, and the cargo. Bennett & Co. are supposed
to have empowered a Mr. Muhlenbruck, a German, to purchase
a cargo at the Havanna, to which place the Fortuna sailed in
ballast, with which she was to return to Riga, touching on her
return at Leith or some British port. The concealed papers
furnish considerable ground for suspecting, that both the vessel
and cargo are, in fact, the property of Bennett & Co.
The first of these secreted papers, contained in the transcript
of the record, is a letter of instructions from Bennett & Co. to
Captain Behrens, dated London, 18th November, 1813, imme-
diately before the departure of the vessel for the Havanna.”
- * “ London, 18th JW ovember, 1813.
“CAPTAIN HENRY BEHRENs, -
“As we have settled your ship's accounts, by paying you a balance of £206
16s. 11d., up to November 13th, we now agree, that the arrangement made with
Messrs. M. & J. Krause, when you were last at Riga, shall continue in force for
the pending voyage, as far as relates to your pay and primage, and we agree to
pay you a gratuity of £100 sterling, at the exchange current, whenever your voy-
age shall end; and, likewise, to allow you your cabin freight at the rate which the
ship receives for her cargo. We have ordered Mr. J. F. Muhlenbruck, to supply
you with the cash necessary for your expenses in the Havanna, when arrived
out, which we beg may be as little as possible. And in case of your wanting
any aid in Portsmouth, apply to Mr. Andrew Lindergreen, or in Plymouth, to
Messrs. Fuge & Son, or in Falmouth, to Messrs. Fox & Son, who will supply
you, on showing this letter. We desire that you will, with your ship Fortuna,
as speedily as possible, join the West India convoy, now laying at Portsmouth,
taking sailing instructions, and proceed with the same convoy to the Havanna,
where you will apply to Mr. J. F. Muhlenbruck, at Messrs. Ychazo & Carrica-
bura, merchants there. You will receive, at the Havanna, Mr. J. F. Muhlen-
bruck's instructions, which you will follow implicitly. Mr. J. F. Muhlenbruck
goes out to the Havanna, on board the Robert Bruce, or some other vessel in the
convoy, if the Robert Bruce is too late. Should any accident befall him in the
vessel, on board of which he goes, so that it is ascertained that Mr. J. F. Muhlen-
bruck cannot arrive at the Havanna, or if he should not be arrived there sixty
days after you have arrived there, you will consult with Messrs. Yohazo &
304 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants.
This letter commences thus:—“As we have settled your
ship’s accounts, by paying you a balance of £206 16s. 11d., up
to November 13th, we now agree,” &c.
The exhibit, No. 40, is an account, (headed, “Dr.—Ship For-
tuna,-Cr.,”) the balance on which is £206 16s. 11d. The Dr.
side of this account charges the ship with an account from Riga,
due the captain, with primage going to Riga, the same from
Riga, with cabin freight, and with his monthly wages from the
6th of May, to the 13th of November, and credits the ship by
account against the captain from Carlscrona, the same from
Gottenburg, and account in London, leaving the balance of
29206 16s. 11d.
The balance arising against the captain, in London, is taken
from exhibit No. 3, which is headed, “expenses in London, on
the voyage from Riga, homeward.” The account amounts to
30202 2s. 10d., and contains a credit for £300, received from
Messrs. Bennett & Co., in cash, leaving, against the captain, the
balance of £97 17s. 2d., which is carried into the general
account for final settlement.
The exhibit No. 1. is headed, “expenses of the ship Fortuna
in Riga in the month of July,” and amounts to 1602.543, Rus-
sian currency. A credit is there given in the following words—
“From Mr. J. Krause in Riga, I received in cash 1600 roubles,
leaving a balance in Russian currency due the captain of 2.543,
Russian currency.” The same exhibit contains the expenses at
Carlscrona, amounting to 161.39, and credits cash received from
Buhling 180, leaving a balance against the captain of 18.9. Also,
expenses in Gottenburg, amounting to 154.7, and credits by cash
received from Mr. Wildenberg 150, leaving a balance due the
captain of 4.7.
Carricabura, what is best to be done. Should the convoy be gone, on your
arrival at Portsmouth, you are at liberty to follow it without convoy. Wishing
you a good voyage, we remain, &c. .
“ (Signed,) BENNETT & CO.”
“P. S. On your arrival at Leith, apply to Ogilvie & Patterson.”
SPRING TERM, 1815. 305
The Fortuna. Krause et al. Claimants.
The appearance of these accounts demonstrates that no settle-
ment was made with the captain at Riga, at Carlscrona, or Got-
tenburg which included them, but that advances were made to
him at those places, respectively, to be accounted for by him
when his accounts should be finally adjusted by Bennett & Co.,
and that the account itself was not stated, until after his return
to England. -
The expenses of the whole voyage appear to be on the same
paper, beginning at Riga. There, Mr. Krause is credited with a
round sum of 1600 roubles, leaving due the small balance of two
roubles and a fraction. This is the natural course of a person
directed to make advances to the captain of a ship, but it is not
credible that, had the account been settled, the precise balance
would not have been paid. Precisely the same thing occurs at
Carlscrona and at Gottenburg. At each place a round sum, as a
sum in gross, is advanced, hearly the sum due, but never the
exact balance. Then, these accounts appear, forming one exhibit,
I suppose, drawn upon the same paper, showing that no account
had been rendered at either of the foreign ports, but that the
whole was received for adjustment with Bennett & Co. This
is certainly very natural if Bennett & Co. be the owners of the
ship, having agents at Riga, Carlscrona and Gottenburg, but very
extraordinary if Krause at Riga was the owner, and Bennett &
Co. were their agents in London. -
The force of this circumstance is, however, very much im-
paired by a paper which shows, that on the arrival of the For-
tuna in Riga, in June 1813, a settlement of some kind took
place, in which the captain’s wages, up to the 6th of May, and
those of the crew, to the 22d of May, were included. With
whom the settlement was made does not appear, but in the sub-
sequent final adjustment with Bennett & Co., the wages of the
captain and crew are calculated from the date at which this paper
states them to have been paid. It appears then, that a settlement
took place on his arrival at Riga on the 7th of June, including
his wages to the 6th of May, and those of his crew to the 22d,
and that his expenses at Riga, and at other ports, were to be
VoI. I.-2 Q
306 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants.
settled in London on his return. There is some difficulty in
accounting for the settlement as respects wages, if the vessel
arrived at her home port in June. The most rational solution
of the difficulty would seem to be, that his voyage commenced
in May in London, and was to terminate in London, a circum-
stance from which it would rather be inferred that London had
become her home port, rather than that Riga continued to be so.
This is corroborated by the manner in which the account is
headed—“Expenses in London on the voyage from Riga home-
ward.” The critique on the word “homeward” is not sustained,
for it is the voyage that is homeward, and the meaning is, expen-
ses paid or settled in London, but incurred on the voyage. And
we find in the account, the wages of the men from the last set-
tlement. This phraseology might be used by men accustomed
to consider London as their home, although the vessel might be
chartered from a foreigner, but it could not be expected from a
Russian captain, commanding a Russian ship, owned and sailing
in the employ of Russians. !
The other accounts in this record, relate chiefly to the Ceres,
a vessel commanded by Captain Behrens, before he was placed
in the Fortuna. They are somewhat mysterious, from the ge-
neral want of dates, and names ; but this may be readily account-
ed for. In other respects, they are not calculated to dissipate
suspicion. That money was paid by Bennett & Co. in London,
on account of the Ceres, furnishes strong ground for the opinion,
that the account of December 1812, was rendered to Bennett
& Co. Now, that account appears, upon the face of it, to have
been prepared for final settlement with the owners, or person,
who acted as owner.
The Fortuna, and the Ceres, too, would seem to be under the
management of the same person. Now, there is proof, that
Bennett & Co. were the managers, and most probably, the owners
of the Ceres; but we should not be justified by any paper or tes-
timony in the cause, in supposing that the Ceres was owned by
Krause, or that Behrens was ever employed by him, or known
to him, until he was placed in the Fortuna.
SPRING TERM, 1815. 307
The Fortuna. Krause et al. Claimants.
These accounts, taken together, certainly indicate a long con-
nexion between Bennett & Co., and Captain Behrens, and seem
to show, that they were in the habit of employing him in their
vessels. * ,
After referring to the settlement which had been made, the
letter of instructions proceeds thus: “We now agree, that the
arrangements,” &c. It has been very properly remarked, that
this agreeing to confirm the contract made by Krause in Riga, is
not the language of an agent, relating to a transaction of his
principal ; but it is undoubtedly true, that the agreement made
by Krause, might terminate on the arrival of the ship in Lon-
don, when a new contract might be made for the voyage to the
Havanna, for the basis of which, the parties took the agreement
at Riga. -
There are, however, in this contract, expressions which ap-
pear somewhat suspicious. It commences thus:—“On the fol-
lowing conditions, have I given to Captain Henry Behrens, the
command of the ship Fortuna, under Russian colours, lying, at
present, at Riga.” * This contract is dated in August 1813.
These words, certainly import, that under this agreement, Cap-
tain Behrens took command, for the first time, of the Fortuna.
* “On the following conditions, have I given to Captain Henry Behrens, the
command of the ship Fortuna, under Russian colours, lying, at present, in
Riga.
“1. Captain Behrens shall have 25 Alberts dollars, monthly wages.
“2. The whole cabin freight has been allowed him.
“3. He is to receive 5 per cent. primage.
“4. Travelling expenses for the benefit of the vessel, as likewise, victualling
expenses for the use of the ship in port, consistent with moderation, have been
allowed to the captain. ':
“Captain Behrens, on his part, promises to watch the interest of his owner, in
every respect, and do the best he can for the benefit of the vessel.
“For the fulfilment of the present contract, I bind myself by my signature.
Riga, the 12th of August, 1813.
“ Per Proc, JOHN KRAUSE,
(Signed) « SCHULTZ.”
308 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants.
Yet, in fact, he took command of her in London, in 1812, and
had sailed in her as commander from London, to the Baltic.
This cannot be a confirmation of his previous appointment in
London, for it is not the language of approbation or confirma-
tion, but of original appointment. And this appears to be more
than two months after the arrival of Behrens at Riga. The lan-
guage does not appear to be at all fitted to the occasion, and
whenever that occurs, there is much cause to suspect that it is
uttered with an object, and for a purpose, not avowed. If it be
supposed, that this contract was made in contemplation of the
voyage to the Havanna, the difficulty is shifted, but not removed.
The question recurs, what need had this contract of the confir-
mation of Bennett & Co. 2 or of the gratuity of £100 * There
is too much reason to suspect, that this is a feigned paper, pre-
pared to give the ship the appearance of her being owned by
Rrause. -
It is a little remarkable, too, that Bennett & Co. speak of it,
as an arrangement made with M. & J. Krause, whereas it pur-
ports to be made with J. Krause only. -
The letter proceeds—“We have ordered Mr. J. F. Muhlen-
bruck to supply you with the cash necessary for your expenses
in the Havanna, when arrived out, which we beg may be as
little as possible.” The letter proceeds to mention persons to
whom he may apply for aid, in different ports in England.
It cannot escape observation, that this letter contains no re-
ference to the interests of the Russian merchants. The money
is not to be advanced on their account. Mr. Muhlenbruck is not
represented as their agent, or as advancing money on their ac-
count. The caution to economy, is not for the sake of his
owners. This is certainly the language of an actual owner, but
is very unlike the language of an agent.
The letter then proceeds to give detailed instructions for the
observance of the directions of Mr. Muhlenbruck, in the Ha-
vanna, without once alluding to any connexion between Muh-
lenbruck and Krause. -
SPRING TERM, 1815. 309
The Fortuna. Krause et al. Claimants.
—---"
The next letter is dated Havanna, 24th March, 1814, and is
written by Muhlenbruck, to Bennett & Co.”
- * “Havanna, 24th JMarch, 1814.
“MEssRs. BENNETT & Co., London—
“Gentlemen —I have the honour to refer you to my last letters, of 21st Fe-
bruary, and the 1st of March, of which I have sent you, by different opportunities,
triplicates. The first letter principally contained to request the favour of your open-
ing me a credit in Jamaica, or Cadiz, to be able to settle the surplus of the amount
already shipped, which may be left out of the proceeds of the out-bound shipment,
of the Robert Bruce. I hope that the above letter has reached you in time to
grant me, as soon as possible, the favour, and beg to be convinced, that only
the greatest necessity engages me to request it : not being able to draw on either
England or America. I have now the greatest pleasure to inform you of the safe
arrival of the Robert Bruce, James Chessel, master, under the protection of his
majesty’s ship North Star, Captain Thomas Coe, from Jamaica. From Cork
she sailed with convoy, consisting of his majesty’s ship Leviathan 74, Captain
Adam Drummond, the Talbot 20, Captain Spelman Swaine, and the Scorpion of
18 guns. Therefore, she has been the whole voyage under convoy, and the in-
surers have to pay the full return of 6 per cent. The North Star, which sails to-
morrow, takes all the ready vessels for Europe out to Bermuda; from thence
another convoy will be granted to protect them to England, or at least as far as
the latitude of Halifax. The Russian ship Fortuna, Captain Behrens, laden
with 1520 boxes assorted sugars, bound to Riga, and for account and risk of
Messrs. M. & J. Krause at that place, is ready to join this convoy. I enclose you
invoice and bill of lading, which you will be pleased to forward with the first
opportunity to the above friends. The Captain, Behrens, has got instructions
from me to tack, according to the prevailing winds, either in Leith or in the
channel. By the present circumstances on the continent of Europe, Messrs. M.
& J. Krause may have been induced to send this cargo to a better market than it
probably meets at Riga. Should they have given you any instructions concern-
ing this vessel, the Captain, Behrens, has orders to wait for your kind information
in regard of the further destination, which orders from you I beg to send him as
soon as you know at what port of the above mentioned he has arrived in En-
gland. Please to inform also Messrs. M. & J. Krause, that I have advanced
here the captain 1332 dollars, 4 cents, for the use of ship Fortuna. Next week
the cargo of the Robert Bruce will be all delivered, and I endeavour to procure
the highest prices possible. The oznaburgs will sell as well as the estopillas, but
I am sorry you was not able to get more of the latter, and of a finer quality, being
always the leading article of an assortment of linen. The prices of sugar are
nearly the same, and the arrival of this convoy has brought them up to # dollar
higher. Coffee is lower, and I expect to buy and lay in good coffee at 10 to 12
dollars. Messrs. Hubberts, Taylor & Simpson inform me that I may not expect
310 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants.
This letter is written with circumspection, and represents the
transaction in a manner entirely conforming to the pretensions
of the claimants, and is certainly adapted to the inspection of
cruisers. It could therefore be concealed only with a hope of
Reeping Bennett & Co. entirely out of view, if with any fraudu-
lent motive. Taken alone, I should not be inclined to yield to
the suspicions it has excited; taken in connexion with the letter
of Bennett & Co. to Behrens, I acknowledge it acquires a mean-
ing which might not otherwise be affixed to it. “The Russian
ship, Fortuna, &c.” This style of communication would rather
create the idea, that with respect to the Fortuna, Muhlenbruck
was the direct agent of M. & J. Krause, and gave this intelli-
gence to Bennett & Co. as the friends and correspondents of that
house; than that he was in fact the agent of Bennett & Co.
appointed and instructed by them, with respect to this very
vessel. “I enclose you invoice and bill of lading, which you
will be pleased to forward by the first opportunity to the above
friends.”
From this language, it could never be inferred, that Bennett
& Co. had the sole management and direction of the vessel, and
had employed Muhlenbruck, as a person who would obey and
account to them. But if the invoice and bill of lading were in-
tended for M. & J. Krause, why not have sent it in a letter to
them 2 Why through Bennett & Co. 2 -
He then says, that he has given the captain orders to touch at
Leith, or some port in the channel, according to winds, and
gives as a reason for these orders, that M. & J. Krause may have
been induced to countermand the destination to Riga, in some
a convoy leaving Jamaica before the 30th of April. This same convoy can arrive
here the 10th or 15th of May, and all possible exertion shall be made on my side
to get the Robert Bruce laden before this time. I have till now not received an
answer of Messrs. Hubberts, respecting the bills on London. Your kind letter
of the 18th of December, I have duly received. I am happy that the sugars
are bought within your limits, and wish to be as fortunate with those wanted for
the Robert Bruce's cargo. I have the honour, &c. -
(Signed) “J. F. MUHLENBRUCK.”
SPRING TERM, 1815. 311
The Fortuna. Krause et al Claimants.
letter to their correspondents Bennett & Co.: thus studiously
preserving the idea, that he acted directly for M. & J. Krause,
and that the voyage was under their management, not under that
of Bennett & Co. He suggests, that the idea of touching at
Leith, or in the channel, originates with himself, and yet it
appears from a postscript to the instructions given to the captain,
by Bennett & Co., that they had ordered him to touch at Leith.
“On your arrival at Leith,” say they, “apply to Messrs. Ogilvie
& Patterson.”
The next sentence requests them, should they have received
orders from M. & J. Krause, to communicate them immediately
to Captain Behrens; a request very proper from the agent of
M. & J. Krause to their correspondents, but very extraordinary,
if made by the agent of Bennett & Co., who were themselves,
the sole managers of the vessel and voyage. The letter pro-
ceeds—“Please to inform, also, M. & J. Krause, that I have
advanced here the captain $1332 04, for the use of the ship
Fortuna.” Who, that should collect his knowledge of the fact
from this letter, would, or could suppose, that this money had
been advanced by the agent of Bennett & Co., and by their ex-
press orders ?
This letter, so far as it respects the Fortuna, is obviously in-
tended to impress the idea, that Muhlenbruck was employed by
M. & J. Krause, and that Bennett & Co. had neither the manage-
ment of the vessel or cargo, but were written to by him, as the
friends and correspondents of the owners at Riga, who might
possibly have received instructions from them. Yet the letter
of instructions from Bennett & Co. to Behrens, and their letter
to the merchants at Charleston demonstrate, that if they were
not the owners, they had the sole and exclusive management of
the vessel and voyage, and that Muhlenbruck was their agent,
appointed to superintend the affairs of the Fortuna, and of other
vessels, acknowledged to be owned, or employed, by them.
Why thus disguise the truth 2 If Bennett & Co. were not the
owners of the vessel and cargo, but were, in fact, the agents of
M. & J. Krause of Riga, with unlimited powers, why not ad-
312 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants,
dress them in their real character P Why not write to them as
the persons having full power over the subject, who had autho-
rized Muhlenbruck to purchase a cargo for their friends, and who
were responsible to him for the money he had advanced by their
order 2 -
The letter of instructions from Mr. Muhlenbruck, to Captain
Behrens, is written precisely in the spirit of that part of the
letter to Bennett & Co., which relates to the Fortuna. It is
precisely such a letter as would be written by the immediate
agents of M. & J. Krause, supposing them to retain in their own
hands, the control of the voyage, to their friends and corre-
spondents, who had no certain agency in the business, but might
possibly have received letters for the ship, countermanding orders
previously given. .
I will here notice the letter written by Mr. Muhlenbruck, at
the Havanna, to M. & J. Krause.” This letter was not secreted,
but kept among the ship’s papers. Who, that should read this
letter, would imagine that Muhlenbruck had been appointed, not
by M. & J. Krause, but by Bennett & Co. 2 Who, that has read
the letter of instructions from Bennett & Co. to Behrens, would
not expect that this letter would contain some reference to the man-
ner in which the writer became the agent of the persons to whom
the letter is addressed ? If to this it be said, that this may have
* “ Havanna, 24th JMarch, 1814.
“MEssRs. M. & J. KRAUSE, RIGA,
“With the present, I have the honour to send you the invoice, and bill of lading,
of a cargo of sugars for your esteemed account, in the Fortuna, Captain H. Behrens.
The ship could not take more than 1520 boxes, white, and 600, brown, with Cam-
peachy wood, which was necessary for stowing: together, $57,517,04; for which
you will please give me credit. The sugars are of the new crop; bought at a mo-
derate price, and of a very good quality. And I flatter myself you will be satisfied
with the fulfilment of your kind commission. As there is a convoy leaving this
place to-morrow, for Bermuda, I found it advisable for the Fortuna to join the same,
and wish her a very quick and safe passage. Of the above documents, I shall send
you duplicates, when I have the honour to write you again. The prices of Rus-
sian articles are, at present, raven’s duck, $16; canvass, $42. Iron can only be
sold with a loss, and in small quantities, as the price has fallen, &c.
- (Signed) “J. F. MUHLENBRUCK.”
SPRING TERM, 1815. 313
The Fortuna. Krause et al. Claimants. -
been done in a previous letter, I answer, that if any such previous
letter had been written, it would, according to mercantile usage,
have been referred to in this letter ; and the stay of Muhlenbruck,
in the Havanna, had been so short, as to diminish the probability
of his having written a previous letter to Riga.
I think it almost impossible, that a stranger, slipped by Bennett
& Co. into the business of M. & J. Krause, would have written
them a letter without hinting at the manner in which he became
their agent, or referring to the information they might have re-
ceived on this subject from Bennett & Co. The proof of any
previous letter, or connexion, might diminish, or, perhaps, de-
stroy the impression this letter is calculated to make, but, at pre-
sent, it has much the appearance of being prepared for the pur-
pose of keeping Bennett & Co. out of view. Such studious con-
cealment always conduces to the opinion, that the person thus
kept out of view, is more than a mere agent.
The concealment of the canister, in the piece of timber, cannot,
I admit, give to the papers a meaning which their words would
not justify. But it shows that the captain, who was much trusted
by Bennett & Co., and had, most probably, been long employed
by them, believed that these papers contained something which
he ought to conceal ; what could this be, but the agency of Ben-
nett & Co. 2 And why should he conceal that, if they were no
more than agents If the letters appeared to be all written with
the same view; if Bennett & Co. appeared throughout, as the
avowed agents of M. &. J. Krause, there would be nothing ex-
traordinary, or suspicious, in the transaction ; and there could be
no fair reason for attempting to conceal this agency. It would
seem as if the original design was to keep them entirely out of
view, and the agency was kept in reserve, as the dernier resort,
if the part they had taken should be discovered. My present
impression is, that if the original purchase of the Fortuna was not
made by Krause, for Bennett & Co., she was transferred to them
before the commencement of this voyage, and that they are to be
considered as the owners of the ship, and of that part of the cargo
which is claimed for M. & J. Krause.
VoI. I.-2 R.
314 NORTH CAROLINA.
The Fortuna. Krause et al. Claimants.
There is no proof that Muhlenbruck is domiciliated in England,
and his property would be restored if he stood in court unim-
peached. But he is so deeply concerned in this whole fraud, if
it be one, that he must suffer the consequences of fraud. The
property claimed by him, is, on that account, condemned also.
This cause operates equally against the claim of the captain.
There is, however, a small claim of a Swedish captain, which
is not infected with this general contamination, and which, there-
fore, ought to be restored.
The conduct of the privateer, though justly reprehensible, can-
not be punished by this Court in the manner required by the
counsel for the complainants. If their case depended, in any de-
gree, on the testimony of the sailors who were taken out of the
ship, and might be tampered with, that testimony might be dis-
regarded. Any circumstance in the cause, which could be ac-
counted for by the removal of the persons who ought to have
remained in the prize, might be leniently considered ; but it is
apparent, that the cause rests on testimony in no degree affected
by these circumstances, and that the question before the court, ap-
peals, not to its discretion, but to its judgment.
The sentence of the district court is affirmed, with costs, ex-
cept as to the claim made for Captain Steinmeitz, a Swede, with
respect to which, it is reversed, and restitution ordered.
This case might be very much altered by a claim made by M.
Rrause, in person, or by affidavit, for the vessel, and by M. & J.
FCrause, for the cargo, by the exhibition of original letters, show-
ing the ownership of the Fortuna, and the plan of this voyage;
by the exhibition of letters, showing that Muhlenbruck’s appoint-
ment was communicated to the house at Riga ; by the letter of
instruction from Bennett & Co. to Muhlenbruck, showing that he
was to act for M. & J. Krause; and by any letter from Muhlen-
bruck to Krause, communicating his situation to them. I do not
suspend the cause, to give time for the production of these papers,
because they ought now to be ready ; but if an appeal should be
prayed, I will make an order for further proof, leaving it to the
supreme court, to decide on its admissibility.
SPRING TERM, 1815. 315
The Fortuna. Krause et al. Claimants.
NotE BY THE EDIToI.-From this judgment, an appeal was taken to the su-
preme court, and the cause was argued at the February term, 1817, by Mr. Gaston
and Mr. Hopkinson, for the appellants and claimants, and by Mr. Wirt, for the
appellees and libellants. The court ordered that both parties be at liberty to pro-
duce further proof. 2 Wheaton, 161. At the February term, 1818, it was
submitted, without argument, upon the further proof, when the decrees of the
courts below, were affirmed. The following points were decided: 1. That the
cargo was British property, and even admitting the Fortuna to be Russian pro-
perty, (and there were many circumstances to maintain the suspicion that she was
British property, or, at least, not owned as claimed,) still, where a neutral ship-
owner lends his name to cover a fraud, with regard to the cargo, that circumstance
alone will subject the ship to condemnation. 2. That it is a relaxation of the rules
of prize courts, to allow time for further proof, in a case where there has been con-
cealment of material papers. 3 Wheaton, 236–246.
@ittttit Cottrf of the ºſmitti'ſ states,
VIRGINIA, NOVEMBER TERM, 1815.
T. EFOIt?:
HoN. JOHN MARSHALL, Chief Justice of the United States.
PHINEAs Bond, Attorney in fact for the Creditors of Ezeki BI.
EDwARDS v. DAVID Ross, WILLIAM MEwBURN ET AL.
The fair construction of the act of assembly of Virginia, passed in December
1792, for regulating conveyances, requires, that a deed of trust, or a mortgage
on personal estate, should be recorded in the general court, or, in the court of
the district, county, city, or corporation, in which the grantor resided, and,
consequently, a deed of trust, or mortgage on slaves, which was recorded only
in the court of the county, in which the slaves were usually employed, (the
grantor residing in a different county,) was held void, as to a creditor.
ON the 6th day of June, 1804, Phineas Bond, as attorney
for the creditors of Ezekiel Edwards, a British subject, obtained
a decree in this Court, for the sum of $180,884 70, against
David Ross, payable in instalments, viz.: $10,000, payable on
the first day of October following, $10,000 on the first day of
January, 1805, and $16,666 66, payable semi-annually, until
the whole decree should be fully satisfied and paid off. On the
21st day of October, 1807, the said Ross executed a deed of
NOVEMBER TERM, 1815. 317
Bond v. Mewburn et al.
mortgage to William Mewburn and others, covering a very
large number of slaves, and other personal property, to secure
certain debts due from the mortgagor, to the mortgagees, which
slaves were usually employed on an estate, called the “Oaford
Iron Works,” belonging to said Ross, in the county of Camp-
bell, and state of Virginia. This deed was executed in the city
of Richmond, where David Ross then lived, and was recorded
in the county court of Campbell. Prior to the institution of
this suit, but several years after the execution of the deed of
mortgage, a portion of the instalments having been paid, but
the residue having fallen due and payable, amounting to a very
large sum, under the decree of the 6th of June, 1804, the plain-
tiff Bond, sued out a writ of fieri facias, against the goods and
chattels of David Ross, for the sum remaining unpaid, which
was executed upon the slaves covered by the mortgage deed to
Mewburn and others. The slaves were exposed to sale, and the
sale was forbidden by Mewburn. The plaintiff, Bond, then filed
his bill in equity in this Court, making the parties to the mort-
gage deeds, parties defendants to the suit, to set aside the deed
of mortgage aforesaid, as “fraudulent and void as to creditors,
it not having been recorded in the general court, or the court of
the district or county, in which the said Ross then resided, and
continues to reside, he having been, at the date of the deed, and
ever since, an inhabitant of the city of Richmond.” The de-
fendant Mewburn, in his answer, admits the facts recited in the
plaintiff’s bill to be true, but insists that the deed of mortgage
was properly recorded in the county court of Campbell, where
the slaves and other property thereby conveyed were, at the
time of executing and recording the same. The same position
is taken by the other mortgagees in their respective answers.
The following opinion was delivered by -
MARSHALL, C. J.-This case depends on the construction of
the act of assembly, for regulating conveyances, which was
passed in the year 1792.(1)
(1) See edition of the Laws of Virginia, 1803, ch. 90, p. 156; and I R. C. of
1819, ch. 99, p. 361-371-[Editor.]
3.18 VIRGINIA.
Bond v. Mewburn et al.
It is with much repugnance that this Court proceeds to decide
any cause dependent on a statute of the state, which is extremely
vague in its expression, and the construction of which does not
appear to have been fully settled by the state tribunals. If the
means of avoiding it were perceived, those means would be
gladly embraced. But were this cause to be postponed, until
the statute on which it depends should be expounded by the
judiciary of Virginia, the postponement might be indefinite, as
it is not understood, that the question is before any of the courts
of the state. It is, therefore, the duty of this Court to proceed.
The first section of the act relates exclusively to lands, and
declares the conveyance to be void, as to subsequent pur-
chasers not having notice thereof; and as to all creditors, unless
it shall be recorded in the general court, or court of the district,
county, or corporation, in which the lands lie.
The second section relates exclusively to covenants, or agree-
ments made in consideration of marriage, and declares, that they
shall not be valid against a subsequent purchaser without notice,
or against any creditor, unless recorded, if land be charged, in
the general court, or court of the district, county, or corporation,
in which the land lies ; or, if personal estate only be charged,
in the court of the district, county, or corporation, in which the
party, bound by such covenant or agreement, resides.(2)
The fourth section relates to conveyances generally, and
declares all deeds of trust, and mortgages, whatsoever, to be void
f (2) But by a subsequent act, all deeds respecting the title of personal chattels,
which the law requires to be recorded, must be recorded in that county or corpo-
ration “in which such property shall remain.” Act of February 24, 1819, 1 R,
C. ch. 99, § 11, p. 364. In the construction of this act, the court of appeals
(Brockenbrough, J., delivering the opinion of the court,) held : that where a
mortgage of slaves “remaining” in one county, was recorded in the county in
which the mortgagor resided, and the slaves were subsequently removed to the
county of the mortgagor's residence; 1. That the deed was void before the
removal of the slaves. 2. That the removal of them, afterwards, to the county
in which the deed was recorded, did not give life and energy to a deed which
was void before, Lane v. Mason, 5 Leigh, 520.-[Editor.]
NOVEMBER TERM, 1815. 319
Bond v. Mewburn et al.
as to all creditors and subsequent purchasers, unless they shall,
be proved and recorded according to the directions of the act.
This section governs the case, and the question to be deter-
mined is, in what court is a mortgage of personal property alone
to be recorded ? The words of the act are, that such mortgage
shall be void, unless recorded according to the directions pre-
scribing the court in which it is to be recorded. The directions
given, respect only those conveyances which comprehend lands,
or those which are made in consideration of marriage.
In the multiplicity of difficulties growing out of this strange
negligence of the legislature, it is not surprising that it should
be doubted, whether a mortgage containing personalties only,
may not be recorded in any court whatever. Such a deed
being declared to be void, unless recorded according to direc-
tions which the law does not give, would furnish arguments of
almost equal plausibility for the opinion, that there was no
restriction whatever on the court in which it might be recorded,
and for the opinion, that it could not be recorded in any court,
but must be for ever void, as to creditors and subsequent pur-
chasers without notice.
Since, however, the obvious intention of the act is to preserve
the validity of a mortgage of a personal thing, and at the same
time to prescribe some court, in which it may be recorded, so
as to give notice to the world that the property is incumbered,
the Court is of opinion, that the law must, if possible, be so
construed as to effect this intention. It must be effected, too,
with the least possible violation to the words of the legislature.
As neither the first nor second section of the act, gives direc-
tions respecting the court in which a deed, mortgaging personal-
ties only, shall be recorded, and as the fourth section must be
understood to refer to those sections only, it becomes necessary
to apply their provisions to such deed, in such manner as to
effect, in the most rational and convenient way, the intention of
the law.
It has been contended, that, as in a case where personal pro-
perty is conveyed with real property, the court of the county,
320 VIRGINIA.
Bond v. Mewburn et al.
in which the land lies, is that in which the deed must be record-
ed, it would be reasonable to require, that the county in which
the personal property resides, or is commouly found, should
furnish the court in which a deed for such property would be
looked for.
For a moment, I was struck with this argument, which seem-
ed to derive weight from the consideration, that, had the Ox-
ford Iron Works themselves, been included in this mortgage,
it ought to have been recorded in the court for the county of
Campbell, and a subsequent purchaser or creditor, asserting a
claim to the slaves in question, would have been bound by such
lien upon them, recorded in that court. Since the slaves in
question, if mortgaged, together with the lands they worked,
would have passed by a deed recorded in Campbell, it seemed
reasonable, that creditors should search the records of that court,
for any incumbrance on them.
But a very slight examination was sufficient to show the fal-
lacy of this idea. If, instead of the Oxford Iron Works, an
inconsiderable tract of land, in the most remote part of the state,
had been included in the mortgage, the law requires that the
deed should be recorded in that county. It is, then, impossible
to argue from the court in which a deed for personalties, when
mixed with land, is to be recorded, to the court in which a deed
for personalties alone, must be recorded. The argument in
favour of regulating the place of recording the deed by the loca-
lity of the personal thing it may convey, if to be maintained,
must rest on other grounds.
The argument urged, by the counsel for the defendant, on the
reasonableness of considering the residence of the property mort-
gaged, as giving the place in which the deed shall be recorded,
appears to me to be very much weakened by the consideration,
that, in contemplation of law, personal property has no locality,
and that, in fact, it has none that is permanent.
To pass over property, the tracing of which would be much
more difficult, and to confine my observations to slaves alone,
where should a mortgage, on slaves usually hired out, be record-
NOVEMBER TERM, 1815. .321
Bond v. Mewburn et al.
ed? Where, if the slave be hired sometimes in one county, some-
times in another ? If it be said that, in such case, the domicil of
the master gives locality to the slave, the answer is, that if this
be true, all the locality which a slave can legally have, is derived,
not from his own casual residence, but from the residence of his
master, on whose will, the place he may at any time occupy,
must entirely depend. The slave, shifted, according to the ca-
price of the master, from plantation to plantation, or hired, some-
times in one county, and sometimes in another, has no place of
residence, sufficiently certain and fixed, to furnish a safe guide for
the Court, in which a lien upon him should be recorded. In con-
templation of law, therefore, and, in fact, slaves, and every per-
sonal chattel, must be considered as transitory; and being fixed
to no place, they adhere to the person of the owner.
The second section of the act, directs the court in which a co-
venant, or agreement, in consideration of marriage, containing
personal estate only, shall be recorded. This is to be in the court
of the district, county, or corporation, in which the party resides.
This section, it has been already said, is not, in its terms, ap-
plicable to conveyances not made in consideration of marriage.
But no reason is perceived for directing a lien of personal pro-
perty, remaining in possession of the grantor, to be recorded in
one court, if it be made in consideration of marriage, and in a
different court, if it be made to secure the payment of money.
The declaration, that deeds of personal property, made in con-
sideration of marriage, should be recorded in the court of the dis-
trict, county, or corporation, in which the grantor resides, would,
certainly, indicate the opinion of the legislature to be, that a lien
on the same property, made on any other consideration, should
be recorded in the same court. In the one case, and in the other,
the object of the record is to give notice to the world that the
lien exists, and it would seem reasonable that, in each case, the
same notice should be given. -
An argument entitled to great respect has been urged against
this construction. It has been said that the legislature certainly
intended to provide for every case, and that the law ought to be
Vol. I.-2 S
322 ^, VIRGINIA.
Bond v. Mewburn et al.
so construed as to reach every case. That under this construc-
tion, there would be no court, in which a deed for personal pro-
perty, given by a non-resident of the state, could be recorded.
This objection to the construction contended for by the plaintiff
is certainly not a light one.
The 5th section of the act provides, that deeds executed by a
non-resident of the state, may be acknowledged or proved in a
manner prescribed by that section, and recorded in the proper
court. This proves that deeds executed by non-residents were
in contemplation of the legislature, and such deeds were to be
recorded somewhere. It is true, the section, in terms, applies
only to deeds conveying land, but there would be nothing extra-
ordinary in extending it, by construction, to chattels also.
If this act had been drawn in such explicit terms, as to pro-
vide plainly, in other instances, for the cases it contemplates, the
difficulty respecting a mortgage for a personal chattel executed
by a non-resident, would induce the Court to struggle for a con-
struction, which would substitute some other place than the
residence of the grantor, as that which should designate the
Court in which the deed should be recorded. But this law is
drawn, in several of its enacting clauses, in such terms as to leave
it impracticable to effect the obvious intention, without aiding
the words.
I very much incline to the opinion, that a deed for personal
chattels executed by a non-resident, would be valid if recorded
in the general court.(3) -
It appears to be the general policy of the law, to make the
general court a place where all incumbrances on property may
be found. For this reason, a memorial of the deeds recorded in
every county or district, is to be transmitted annually to that
court. It is also a court of record which is common to the
whole state. Its jurisdiction in this respect is universal. It is
(3) By the act of 1818, [See Revised Code of 1819, vol. 1. ch. 67, § 11, it
is declared that no deeds of real or personal property executed subsequent to the
1st day of November, 1814, shall be admitted to record in the general court.—
: Editor.]
NOVEMBER TERM, 1815. 323
Bond v. Mewburn et al.
empowered to receive probat of all deeds whatever. Any deed,
comprehending personalties or realties, may be recorded in that
court. It is impossible to find a motive for excluding a deed,
mortgaging a personal chattel, without land. The exclusion can-
not have been intended. If, in such a case, a construction, which
would give validity to a deed recorded in that court, can be
supported, it ought to be supported. The words are, “no cove-
nant, &c. shall be good unless acknowledged, &c. if lands be
charged, before the general court, or the court of that district
or county in which the land or part thereof lieth, or if personal
estate only be settled, &c. before the court of that district,
county, city, or corporation, in which the party shall dwell.”
The mind of the legislature was directed to the designation of
the particular court among those whose powers were limited, in
which the deeds described might be recorded, and, therefore, it
might not be deemed necessary, after naming the general court
in the 'first instance, to repeat that court in the record. The
word general court may be understood, and the act construed as
if it had been again inserted. *
There are certainly few cases in which this freedom of con-
struction can be justified. If any act will justify it, it is the act
for regulating conveyances.
Although I at present rather incline to construe the act, inde-
pendent of precedent, so as to consider it as requiring, that a
deed of mortgage for personal estate only, must be recorded in
the general court, or court of the district, county, or corporation
in which the grantor resides, I am not sure that I should give
this opinion were it not supported by the case of Claiborne v.
Hill, [1 Washington, 177.] That case does not decide that a
deed of mortgage for slaves, recorded in the county where the
slaves happen corporeally to reside, is void, but it decides that
such a deed, recorded in the county where the grantor resides,
although the slaves be at the time on a plantation in a different
county, is good. Either, then, such deed may be recorded in-
differently in the one county or the other, or it can be recorded
only in the general court, or court of that district county or cor-
324 * VIRGINIA.
Meade v. Deputy Marshal of Virginia District.
poration in which the grantor resides. I can perceive nothing
in the act which indicates an intention to allow this alternative,
and the policy of the law does not appear to require or admit of
it. The decision of the court, on the authority of this case, is
that this deed is not recorded in the proper county.
NotE.—The decree rendered in this cause pronounced the deed of mortgage
to Mewburn and others “void as to creditors, it not being duly recorded; and that,
therefore, a writ of fieri facias sued out by a creditor of the said Ross, might law-
fully be levied on the slaves and other property conveyed by the said deed.”—
[Editor.] .*
WILLIAM MEADE v. THE DEPUTY MARSHAL of THE
VIRGINIA, DISTRICT.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
1t seems, That a court martial, organized under the authority of a state, has no
power to assess fines upon delinquent militia-men, for failing to obey a requi-
sition to enter the service, emanating from the secretary of war.
A court of inquiry is the proper tribunal for assessing fines against delinquent
militia, or for the trial of privates not in actual service, under the laws of
Virginia.
The sentence of a court martial rendered against an individual without notice, is
void. -
MOTION to be discharged under a writ of habeas corpus.
The motion was made, and the following opinion delivered in
vacation.
NOVEMBER TERM, 1815. 325
Meade v. Deputy Marshal of Virginia District.
MARSHALL, C. J.-By the return of the deputy marshal, it
appears, that William Meade, the petitioner, was taken into
custody by him, and is detained in custody, on account of the
non-payment of a fine of forty-eight dollars, assessed upon him
by the sentence of a court martial, for failing to take the field,
in pursuance of general orders of the 24th of March, 1813, the
marshal not having found property, whereof the said fine might
have been made. The court martial was convened by the fol-
lowing order :
“ November 8th, 1813.
“ Brigade Orders. -
“A general court martial, to consist of Lieutenant Colonel
Mason, president, &c., will convene at the court house, in
Leesburg, on Friday, the third day of next month, for the trial
of delinquencies, which occurred under the late requisitions of
the governor of Virginia, and secretary of war, for militia from
the county of Loudoun.
(Signed) “HUGH Douglass,
“Brigadier General, Siarth Brigade of Pa. Militia.”
The court being convened, the following proceedings were
had.
“It appearing to the satisfaction of the court, that the follow-
ing persons of the county of Loudoun, were regularly detailed
for militia duty, and were required to take the field, under
general orders, of March 24th, 1813, but refused, or failed to
comply therewith ; whereupon, this court doth order and ad-
judge, that they be, each, severally fined the sum annexed to
their names, as follows, to wit: William Meade, forty-eight
dollars,” &c. -
On the part of the petitioner, the obligation of this sentence
is denied. •
1st. Because it is a court, sitting under the authority of the
state, and not of the United States. 2dly. It has not pro-
ceeded according to the laws of the State, nor is it constituted
according to those laws.
ses - VIRGINIA.
Meade v. Deputy Marshal of Virginia District.
3dly. Because the court proceeded without notice.
1st. The court was unquestionably convened by the authority
of the state, and sat as a state court. It is, however, contended,
that the marshal may collect fines, assessed by a state court, for
the failure of a militia-man to take the field, in pursuance of
the orders of the President of the United States. }
The Constitution of the United States, gives power to con-
gress, “to provide for calling forth the militia to execute the
laws of the Union,” &c.
In the execution of this power, it is not doubted, that congress
may provide the means of punishing those who shall fail to obey
the requisitions, made in pursuance of the laws of the Union,
and may prescribe the mode of proceeding against such delin-
quents, and the tribunal before which such proceedings should
be had. Indeed, it would seem reasonable to expect, that all
the proceedings against delinquents, should rest on the authority
of that power, which had been offended by the delinquency.
This idea must be retained, whilst considering the acts of
congress. The first section of the act of 1795, authorizes the
president, “whenever the United States shall be invaded, or be
in imminent danger of invasion,” &c., “to call forth such num-
ber of the militia of the state, or states, most convenient to the
place of danger, or scene of action, as he may judge necessary,
to repel such invasion, and to issue his orders for that purpose,
to such officer, or officers of the militia, as he shall think
proper.” x
The fifth section enacts, “That every officer, non-commission-
ed officer, or private of the militia, who shall fail to obey the
order of the President of the United States, in any of the cases
before recited, shall forfeit a sum, not exceeding one year’s pay,
and not less than one month’s pay, to be determined and ad-
judged by a court martial.”
The sixth section enacts, “That courts martial, for the trial
of militia, shall be composed of militia officers only.”(1)
(1) Act of February 28th, 1795. 1 Story's Laws U. S., 389, ch. 101.—
[Editor.]
NOVEMBER TERM, 1815. 327
Meade v. Deputy Marshal of Virginia District.
Upon these sections, depends the question, whether courts
martial for the assessment of fines against delinquent militia-men,
should be constituted under the authority of the United States,
or of the state to which the delinquent belongs. The idea
originally suggested, that the tribunal for the trial of the offence,
should be constituted by, or derive its authority from, the
government against which the offence had been committed,
would seem to require, that the court thus referred to in general
terms, should be a court sitting under the authority of the
United States. It would be reasonable to expect, if the power
were to be devolved on the court of a state government, that
more explicit terms would be used for conveying it. And it
seems, also, to be a reasonable construction, that the legislature,
when in the sixth section, providing a court martial for the trial
of militia, held in mind the offences described in the preceding
section, and to be submitted to a court martial. If the offences
described in the fifth section, are to be tried by a court, consti-
tuted according to the provisions of the sixth section, then we
should be led by the language of that section, to suppose, that
congress had in contemplation a court formed of officers in
actual service, since the provision that it should be composed
“ of militia officers only,” would otherwise be nugatory.
This construction derives some aid from the act of 1814. By
that act, courts martial for the trial of offences, such as that with
which Mr. Meade is charged, are to be appointed according to
the rules prescribed by the articles of war. The court in the
present case, is not appointed according to those rules.(2)
The only argument which occurs to me against this reasoning,
grows out of the inconvenience arising from trying delinquent
militia-men, who remain at home, by a court martial, composed
of officers in actual service. --
This inconvenience may be great, and well deserves the con-
sideration of congress; but I doubt whether it is sufficient to
(2) Additional act of April 18th, 1814, 2 Story’s Laws U. S., 1424. ch. 140.
§ 1.
328 ** VIRGINIA.
Meade v. Deputy Marshal of Virginia District.
justify a judge, in so construing a law, as to devolve on courts,
sitting under the authority of the state, a power which, in its
nature, belongs to the United States.
If, however, this should be the proper construction, then the
court must be constituted according to the laws of the state.
On examining the laws of Virginia, it appears, that no court
martial can be called for the assessment of fines, or for the trial
of privates, not in actual service. This duty is performed by
courts of inquiry, and a second court must sit to receive the
excuses of those against whom a previous court may have assess-
ed fines, before the sentence becomes final, or can be executed.
If it be supposed, that the act of congress has conferred the
jurisdiction against delinquent militia privates on courts martial,
constituted as those are for the trial of officers, still this court
has proceeded in such a manner, that its sentence cannot be sus-
tained.
It is a principle of natural justice, which courts are never at
liberty to dispense with, unless under the mandate of positive
law, that no person shall be condemned unheard, or without an
opportunity of being heard. There is no law authorizing courts
$ martial to proceed against any person, without notice. Conse-
quently, such proceeding is entirely unlawful. In the case of
the courts of inquiry, sitting under the authority of the state,
the practice has, I believe, prevailed, to proceed in the first
instance, without notice ; but this inconvenience is, in some
degree remedied, by a second court, and I am by no means pre-
pared for such a construction of the act, as would justify render-
ing the sentence final, without substantial notice. But, be this
as it may, this is a court martial, not a court of inquiry, and no
law exists, authorizing a court martial to proceed without notice,
as in this case, the court appears to have proceeded. For these
reasons, I consider its sentences as entirely nugatory, and do,
therefore, direct the petitioner to be discharged from the custody
of the marshal.(3)
* (3) This case, in some of its aspects, resembles very much the case of Hous-
ton v. Moore, 5 Wheat. 1. In that case, it was said by Mr. Justice WASHING-
NOVEMBER TERM, 1815. 329
*
Meade v. Deputy Marshal of Virginia District.
Ton, in delivering the opinion of the court, that, although the “court martial,”
designated in the act of 1795, was in fair construction, to be considered a court
martial, organized under the authority of the congress of the United States, yet,
as the act had not withheld the power conferred by it from a court martial, orga-
nized under state authority, and as it was expressly conferred by a law of the state
of Pennsylvania, the state court martial had a concurrentjurisdiction with the court,
pointed out by the act of congress, Stony, J., and another judge, dissenting.
The latter judges held, that the state law of Pennsylvania, erecting a tribunal,
and vesting it with jurisdiction to carry into effect an act of congress, was un-
constitutional and void. See also, Martin v. Mott, 12 Wheat. 19. [6 Con. Rep.
Sup. Ct. U. S., 410.]—[Editor.]
Vol. I.—2 T'
circuit court of the Qimited states.
VIRGINIA, November TERM, 1817.
IBEFORE
Hos. JoHN MARSHALL, Chief Justice of the United States.
HoN. SAINT GEORGE TUCKER, District Judge.
Wormſ ELEY ET AL. v. WoRMELEY ET AL.
A deed of marriage settlement, executed on the day of the marriage, which con-
veys to a trustee a tract of land, and some slaves, principally for the wife and
children, has in it this uncommon clause: “ that whenever, in the opinion of
the said T. S., the trustee, the said landed estate can be sold and conveyed,
and the money arising from the sale thereof, laid out in the purchase of other
lands, advantageously for those concerned or interested therein, then the said
T. S. is hereby authorized and empowered to sell and convey the same ; and
the lands so by him purchased, shall be in every respect subject to all the
provisions, uses, trusts, and contingencies, as those were by him sold and
conveyed.” Per curiam : The power thus granted is great, but not unlimited.
The trustee is to exercise, not his will, but his judgment. He can only sell
and make a re-investment, when, in his opinion, both of these acts can be done
advantageously to the parties interested. -
If the trustee sells the land worth $10,000, and re-invests it in land not worth
$1000, or if there is no re-investment of the money at all, in either case, the
power is not executed. The sale and purchase are part of one operation; and
the operation is incomplete if either be wanting. Nor can the judgment be
November TERM, 1817. 331
Wormeley et al. v. Wormeley et al.
fairly exercised on the advantageousness of a sale and purchase, without com-
paring the tract to be sold with the tract to be purchased.
Therefore, where the trustee sold the trust lands to one of his own creditors,
(who held a mortgage on a tract of land owned by the trustee, which was fore-
closed,) and the creditor discounted the balance due on the mortgage, in part
payment of the trust estate; although this sale was with the approbation of the
husband and father of the cestwis que trust ; and placed the cestwis gue trust
on another tract of land, which was not, however, conveyed to the same uses
with the trust land.—Held: 1. That this is not a correct execution of the
trust; and as to the trustee himself, the whole transaction is vitiated; and if
he had taken a re-conveyance of the land to himself, he would have held it
subject to the trusts of the original deed: for a trustee cannot bargain with
himself. -
Held: 2. That a purchase of the trust property, with notice of the trust and its
violation, is himself a trustee, and holds the lands subject to the claim of the
cestwis gue trust.
In this case, the trustee sold to W., his creditor. That creditor had notice of the
trust, for that appeared on the face of the deed, under which his vendor held :
he must be considered as having notice of the violation of the trust; first, be-
cause part of the proceeds of the sale were applied to the payment of the
trustee’s individual debt; and, secondly, because he had a right to see the
deed by which the exchanged lands were settled to the same uses with the
first, and its non-production was equivalent to its non-existence. W., there-
fore, held the land subject to the trust.
C. & M. were sub-purchasers from V. They had the same notice of the trust
that W. had ; and they also knew, that the trustee had not settled other lands
to the same uses as the original trust deed, and that part of the proceeds of
the trust lands had been applied to the trustee’s individual debt; they, there-
fore, were purchasers with notice of the violation of the trust, and held the
lands subject to the trust.
It is no excuse to them, that the trustee may have “given credit to the cestui gue
trust for all that he received from W.,” for that was not all that the trustee
was bound to do; he was bound to lay out the proceeds advantageously in
other lands.
It is not sufficient for the purchasers, C. & M., to deny all fraud in themselves,
and all knowledge of fraud, in W. and the trustee, unless they deny a know-
ledge of the facts, from which fraud is inferred by the law.
To constitute a purchaser without notice, it is not sufficient that the contract should
be made without notice, but that the purchase-money should be paid before
notice.
These purchasers, although they are to be held as trustees for the cestuis gue
trust, are not, however, to be viewed as mere squatters. They believed their
title to be good. They are entitled, 1. To the encumbrances from which they
332 VIRGINIA.
Wormeley et al. v. Wormeley et al.
have relieved the land; 2. To the permanent improvements which they have
made on the land; and, 3. For the advances they have made for the support
of the wife and children. They are chargeable with profits. The advances are
to be set off against the profits; and the encumbrances and improvements to be
a charge on the land, unless absorbed by the residue of the profits.
THIS was a bill in chancery, exhibited by Mary Wormeley,
the wife of Hugh Wallace Wormeley, and her infant children,
John S., Mary W., Jane B., and Anne B. Wormeley, by their
next friend, against the said Hugh Wallace Wormeley, Thomas
Strode, Richard Veitch, and David Castleman, and Charles
M'Cormick, for the purpose of enforcing the trusts of a marriage
settlement, (executed by the said Hugh and Mary, previous to
their marriage, in which the said Strode was the trustee,) for set-
ting aside a sale, made of the trust property, by the said Strode,
to the said Veitch, and by him, to Castleman and M'Cormick;
and for obtaining an account and other relief. The bill charged
the sale to have been a breach of the trusts, and that the purchasers
had notice. The facts are as follows:
In contemplation of a marriage between Hugh Wallace Worme-
ley and Mary Strode, an indenture of three parts was executed on the
5th of August, 1807, by way of marriage settlement, to which the
said husband, and intended wife, and Thomas Strode, her brother,
as trustee, were parties. The indenture, after reciting the in-
tended marriage, in case it shall take effect, and in bar of dower
and jointure, conveys all the real and personal estate, held by
Hugh W. Wormeley, under a certain indenture, specified in the
deed, as his paternal inheritance, to Thomas Strode, in fee upon
the following trusts : viz., “for the use, benefit, and emolument,
of the said Mary, and her children, if any she have, until the de-
cease of her intended husband, and then, if she should be the
longest liver, until the children should, respectively, arrive at
legal maturity, at which time each individual of them is to receive
his equal dividend, &c., leaving, at least, one full third part of
the estate, &c., in her possession, for, and during her natural life;
then, on her decease, the landed part of the said one-third, to be
divided among her children, and the personal property, accord-
NovemBER TERM, 1817. 333
Wormeley et al. v. Wormeley et al.
ing to the will of the said Mary, at her decease. But if the said
\ Mary should depart this life before the decease of the said Hugh,
then he is to enjoy the whole benefits, emoluments, and profits,
during his natural life, then to be divided amongst said Hugh’s
children, as he, by will, shall see cause to direct, and then this
trust, so far as relates to T. Strode, to end, &c.; and so, in like
manner, should the said Mary depart this life without issue, then
this trust, to end, &c. But should Wormeley depart this life be-
fore the said Mary, and leave no issue, then the said Mary to
have and enjoy the whole of said estate, for, and during her
natural life, and then to descend to the heirs of the said Worme-
ley, or as his will, relative thereto, may provide.”
Then follows this clause: “And it is further covenanted, that,
whenever, in the opinion of the said Thomas Strode, the said
Zanded property can be sold and conveyed, and the money
arising from the sale thereof, be laid out in the purchase of
other lands advantageously for those concerned and inter-
ested therein, that then, and in that case, the said Thomas
Strode is hereby authorized to sell, and, by proper deeds
of writing, to convey the same , and the lands so purchased,
shall be in every respect subject to all the provisions, uses,
trusts, and contingencies, as those were, by him sold and con-
veyed. And it is further understood by the parties, that the
said Hugh W., under leave of the said Thomas Strode, his heirs
and assigns, shall occupy and enjoy the hereby conveyed estate,
real and personal, and the issues and profits thereof, for, and dur-
ing the term of his natural life, and after that, the said estate to
be divided agreeably to the foregoing contingencies.”
The property conveyed by the settlement consisted of about
350 acres of land, situated in Frederick county, in Virginia.
The marriage took effect on the day that the deed of settlement
was executed, and four children were the fruits of the marriage,
who, with their mother, suing by their next friend, George F.
Strother, were the parties plaintiffs in this cause. For a short
time after the marriage, Wormeley and his wife resided on the
Frederick lands, and a negotiation was then entered into between
334 VIRGINIA.
Wormeley et al. v. Wormeley et al.
Wormeley and Strode, the trustee, for the exchange of the Fred-
erick lands, for lands belonging to Strode in the county of Fau-
quier, in Virginia. Various reasons were suggested for this
exchange, the wishes of friends, the proximity to the trustee and
the other relations of the wife, and the superior accommodations
for the family of Wormeley. The negotiation took effect; but
no deed of conveyance or covenant of agreement recognising
the exchange, was ever made by Wormeley; and no conveyance
of any sort, or declaration of trust, substituting the Fauquier
lands for those conveyed by the marriage settlement, was ever
executed by the trustee. Wormeley and his family, however, re-
moved to the Fauquier lands, and resided on them for some time.
During this residence, to wit, on the 16th of September, 1810,
the trustee sold and conveyed the Frederick lands, to the defen-
dant Veitch, for the sum of $6500 ; and to this conveyance,
Wormeley, for the purpose of signifying his approbation of the
sale, became a party. The circumstances of this transaction
were as follows: Strode, the trustee, had become the owner of a
tract of land in Culpepper county, in Virginia, subject to a mort-
gage to Veitch and one Thompson, upon which more than 3000
dollars were then due, and a foreclosure had taken place. To
discharge this debt, and relieve the Culpepper estate, was a lead-
ing object of the sale, and so much of the trust money as was
necessary for the extinguishment of this debt, was applied for
this purpose. At the same time, Strode, as collateral security to
Veitch for the performance of the covenant of general warranty
contained in the indenture, executed a mortgage upon the Fau-
quier lands, then in the possession of Wormeley. In 1811,
Veitch conveyed the Frederick lands, to the defendants, Castle-
man and M'Cormick, for a large pecuniary consideration, in
pursuance of a previous agreement, and by the same deed, made
an equitable assignment of the mortgage on the Fauquier lands.
About this time, Wormeley, having become dissatisfied with the
Fauquier lands, a negotiation took place for his removal to
some lands of Strode, the trustee, in Kentucky; and, upon that
occasion, a conditional agreement was entered into between
NOVEMBER TERM, 1817. 335
Wormeley et al. v. Wormeley et al.
Strode and Wormeley, for the purchase of a part of the Ken-
tucky lands, in lieu of the Fauquier lands, at a stipulated price,
if Wormeley should, after his removal there, be satisfied with
them. Wormeley, accordingly, removed to Kentucky, with his
family ; but, becoming dissatisfied with the Kentucky lands,
the agreement was never carried into effect. Afterwards, in
April 1813, Castleman and M'Cormick, by deed, released the
mortgage on the Fauquier lands, in consideration, that Veitch
would enter into a general covenant of warranty to them of the
Frederick lands; and on the same day, Strode the trustee exe-
cuted a deed of trust to one Daniel Lee, subjecting the Kentucky
lands to a lien as security for the warranty in the conveyance
of the Frederick lands, and, subject to that lien, to the trusts of
the marriage settlement, if Wormeley should accept these lands,
reserving, however, to himself, a right to substitute any other
lands upon which to charge the trusts of the marriage settlement.
At this period, the dissatisfaction of Wormeley was known to all
the parties, and Wormeley was neither a party, nor assented to
the deed; and Castleman and M'Cormick had not paid the pur-
chase-money. In August 1813, the trustee sold the Fauquier
lands to certain persons, by the name of Grimmar and Mundell,
without making any other provision for the trusts of the mar-
riage settlement.
The opinion of the Court was delivered as follows, by
MARSHALL, C. J.-The plaintiffs in this cause, are a wife
and a mother, with her three infant children. They apply to
this Court for its aid, to restore them to the possession of pro-
perty conveyed in contemplation of marriage, by a deed of which
they are the principal objects.
The defendants are the husband, the trustee, (and that trustee
a brother,) and the purchasers of the trust estate.
The defendant, Hugh Wallace Wormeley, being about to
intermarry with the plaintiff, Mary, executed a deed, dated the
5th of August, 1807, the day on which the marriage took effect,
by which he conveyed, in lieu of dower, his paternal estate,
336 VIRGINIA.
A_*.*
Wormeley et al. v. Wormeley et al.
~f
consisting of a small tract of land, in the county of Frederick,
and some slaves, to Thomas Strode, the brother of his intended,
wife, in trust, principally for her and her children.
This property is gone, the trust is totally defeated, and the
first inquiry is, whether this effect has been produced by the
regular execution of any power inserted in the deed.
The deed contains this uncommon clause: “And it is further
covenanted, bargained, and agreed, by and between the said
contracting parties, that whenever, in the opinion of the said
Thomas Strode, the said landed estate can be sold, and convey-
ed, and the money arising from the sale thereof, laid out in the
purchase of other lands, advantageously, for those concerned,
or interested therein; that then, in that case, he, the said Thomas
Strode, is hereby authorized, and by these presents, fully em-
powered to sell, and by proper deeds of writing, convey the
same; and the lands, so by him purchased, shall be, in every
respect, subject to all the provisions, uses, trusts, and contin-
gencies, as those were by him sold and conveyed.”
I term this, an uncommon clause, because it authorizes the
trustee to sell on his own judgment, without consulting those
who are to be benefited by the trust.
The power thus granted is great, but it is not unlimited. The
trustee is not to exercise his will, but his judgment. Whenever,
in his opinion, the trust estate can be sold, and the money in-
vested in other land, advantageously for the parties interested;
then, and then only, may he sell and make this reinvestment.
The standard by which he is to act is invisible. Yet it is an
actually existing standard, and one by which the conduct of the
trustee must be measured. To determine, whether he has been
regulated by it or not, his actions must be examined. -
In inquiring, whether a party has acted according to his best
judgment or not, allowance must be made for the fallibility of
the human mind, and for difference of opinion. But there are
strong cases, in which all will unite in saying, that the judg-
ment has not been fairly exercised. If, under such a power, as
is in this deed, a tract of land, notoriously worth $10,000,
NOVEMBER TERM, 1817.
3
3
7
Wormeley et al. v. Wormeley et al.
should be sold, and invested in a tract not worth $1000, it
would be in vain for the trustee to say, that in his opinion, the
sale and reinvestment was an advantageous operation. He could
not have entertained such an opinion. The case is certainly not
less strong, where he makes no reinvestment whatever. He
could not be of opinion, that it was advantageous to the parties,
to sell the land and get nothing for it.
But further. Where there is no reinvestment of the money,
the very letter of the power is disregarded. He is to sell only,
when the money can be advantageously laid out in the purchase
of other lands, “and the lands so purchased, are to be held in
trust, for the same objects with those sold.” There must be
other lands purchased, or the power is not executed. The sale
and purchase are different links of the same chain ; though the
parts are distinct, they seem to be parts of one operation, which
is incomplete, if either be wanting. These parts, too, it would
seem, must be in execution at the same time. I do not well
comprehend, how the judgment can be fairly exercised on the
advantageousness of a sale and purchase, without comparing the
tract to be sold, with the tract to be purchased, The words of
the power, and the situation of the parties, are equally opposed
to the idea of selling first, and then searching for other lands,
on which to place the Wormeley family.
Having premised these general observations, on the nature of
the power, under which the trustee acted, the Court will pro-
ceed to consider more particularly, the facts of the case, in order
to decide, whether the cestuis gue trust have still a remedy
against the land, or only against the person of the trustee or
purchaser. -
Wormeley, with his wife, resided, for a short time, either on
the trust estate, or with his mother. Their situation appears not
to have been comfortable ; and in little more than a year after the
marriage, both the father and brother of Mrs. Wormeley express-
ed a strong desire to remove her into their neighbourhood ; and
an agreement was made between the defendants, Strode and
Wormeley, with the approbation, as it appears, of the friends of
Vol. I.-2 U. -
3
3
S
VIRGINIA.
Wormeley et al. v. Wormeley et al.
Wormeley, for the exchange of the trust land, for a tract lying in
the county of Fauquier. To this tract, Wormeley removed, and
soon afterwards, Thomas Strode sold the land, in Frederick, to
Richard Veitch, one of the defendants in this cause, and convey-
ed it to him by deed, dated in September, 1810, to which deed
Wormeley was a party. Veitch was the holder of a mortgage
on the estate of Strode, in Culpepper, which had been foreclosed,
and on which something more, than $3000 were due. This sum
was discounted in part payment of the trust estate.
The Fauquier lands were never conveyed to the same uses with
the Frederick lands, nor have any others been substituted in their
place. In about twelve months, Wormeley became dissatisfied
with this estate, and some arrangements were made for furnish-
ing him with lands in Kentucky, which are not further noticed,
because they have terminated in nothing, and do not affect this
part of the case. Subsequently to these arrangements, Strode
sold the land in Fauquier.
Excluding from our view the rights of the purchaser, and con-
sidering the case as between the plaintiffs and the trustee, can it
be doubted whether this transaction would, in any manner, affect
the Frederick lands 2
We will not inquire into the relative value of the two tracts :
we will not inquire whether the approbation, given by the
friends of Wormeley to this exchange, arose from a knowledge
of this relative value, or from the hope that he would derive other
advantages from living in the neighbourhood of his wife’s father,
which would more than compensate for any small loss in the ex-
change ; we will not inquire, whether, at the time, Strode intend-
ed to execute the contract; we will suppose this transaction to
have originated in the causes which have been assigned for it;
still the policy, and the wise policy, of courts of equity, forbids
trustees to bargain with themselves. In the execution of trusts,
especially such as this, no unworthy ingredient, respecting self,
ought to be intermingled. It is wisely held to vitiate the whole
transaction. A trustee, conscious of the utmost purity and fair-
ness of intention, who makes a contract with himself, for the
trust property, performs a most perilous act. He exposes him-
NOVEMBER TERM, is 7.
Wormeley et al. v. Wormeley et al.
self to every hazard which can befal the estate. It does not, in
point of law, alter the case, that Wormeley assented to this ex-
change. He had no power to assent. The deed was executed
to secure the land against him and his indiscretions.
If, then, the Fauquier lands had been actually settled in trust,
the title of Strode, to the Frederick land, could not be secure.
But the Fauquier land has not been, nor can it be, settled on the
Wormeley family. That part of the power, which respects the
reinvestment of the money in other lands, remains totally unex-
ecuted. Can it, then, be doubted, that Strode, if he now held
the Frederick lands, if he had conveyed them, and taken back a
re-conveyance to himself, would hold them under the trusts
created by the deed of 1807? Believing this point to be perfectly
clear, the Court will proceed to inquire, -
Secondly, Whether the land, in the hands of purchasers,
remains liable to the same trusts 2 -
It is believed to be unquestionable, that, by conveying the land
in Frederick, to his own purposes, without selling other land to
the same trusts, the trustee committed a breach of trust.
It is equally clear, that a purchaser of the trust property, with
notice of the trust, and its violation, is himself a trustee. This
principle is too familiar with the profession to require that cases
should be cited in its support.
Had the purchasers, in this case, notice? And, first, had Veitch
notice P I do not mean to inquire, merely, whether he had notice
of the trust, because, claiming title under the trust deed, he is, of
course, acquainted with its contents ; but, also, whether he had
also notice of the breach of trust 2
Strode violated his duty as a trustee, probably, in bargaining
with himself, or with Wormeley, whom he knew to be incapa-
ble of making a contract respecting this property ; and in sell-
ing the Frederick land for his own purposes; certainly, in not
immediately executing a proper deed for the Fauquier lands.
He ought not to have permitted this duty to remain a day un-
performed. He ought not to have exposed the Fauquier lands
to the hazard of remaining apparently his property, without any
340 VIRGINIA.
Wormeley et al. v. Wormeley et al.
deed declaring the trusts by which he held them. Had he pur-
chased other lands for the Wormeley family, and taken a con-
veyance to himself, without specifying the trusts, his conduct,
certainly, would not have comported with his duty. As little
did it accord with his duty to hold this land without a declara-
tion of trust. I speak of the state of things at the time of the
sale to Veitch, not of the state of things afterwards.
Were these facts known to Veitch 2 -
With the application of the purchase-money in discharge of
his own decree, he was of course acquainted. That Wormeley
relied on receiving the Fauquier land instead of the Frederick
land, was, probably, equally well known to him. The character
of the title, and the situation of the parties, Wormeley, no longer
residing on the Frederick land, and having removed to Fau-
quier, would lead to inquiries which must explain the transac-
tion. Wormeley’s certificate, too, given a few days before the
deed to Veitch was executed, shows that some specific land was
substituted for that in Frederick ; and shows further, that the
tract so substituted was acquired by an exchange of property
with the trustee. Veitch then knew from this certificate, that
the land was not to be sold to him by Strode in execution of his
power, but that Strode had already appropriated the trust estate
to his own use, and was selling for himself. Whether he knew
that the tract in Fauquier was the land alluded to or not, he
knew the character of the transaction, and took upon himself
the risk of its validity. But it is not to be believed, that he did
not know every thing which it was material to know. The
certificate itself points to the tract, for it is dated at Roseville, in
Fauquier.
He must, also, be considered, in this Court, as having notice,
that a deed was not executed, declaring the trusts on which the
newly acquired land was held. He had a right to see this deed,
and was bound to see it. Its non-production was proof of its
non-existence. But this is not all. If he knew that the
Fauquier land was substituted for the Frederick land, as we
think he did, then the deed he received of those lands, as colla-
NOVEMBER TERM, 1s17. 341
womeley et al. v. Wormeley et al.
teral security, proves his knowledge, in fact, that no conveyance
of them in trust had been made. \
He probably relied on the certificate of Wormeley as his
security, and, certainly, that certificate would go far in protecting
him from any claim made by Wormeley. But he ought to
have been advised, that Mrs. Wormeley and her children could
not be affected by it. -
There is a circumstance growing out of the deed from Strode
to Veitch, not entirely unworthy of notice. That deed is
apparently drawn by counsel before whom the papers were laid.
We should expect it to state the transaction truly, was there
nothing in the transaction which there was a wish to conceal.
We should expect it to refer to the exchange between Worme-
ley and Strode, if that exchange was believed to be a fair
execution of the trust. Such a reference would have secured
the land from many casualties. But the deed declares, that
Strode sold the trust land to Veitch, “with an intention of
investing the proceeds of such sale in other lands of equal or
greater value.” This untruth, which was known to Veitch,
betrays a consciousness that the transaction required some other
shape than its own. _*
But could Veitch even have supposed, that the money was to
be invested in other lands to be purchased in future; he knew
that a large portion of it was directed to his own debt, and he
must have known, that a trustee, whose embarrassments could
induce him to seize a trust fund in order to relieve his own
estate from being sold under a mortgage that was foreclosed,
could not come into market without money, to purchase other
lands, under very advantageous circumstances. Add to this
consideration, that the power given by the deed of trust to
Strode, was not to sell with the intention of investing the money
in other lands at some future time, but to sell and invest when,
in his opinion, it could be done to advantage. . -
Veitch, then, had notice of all the material facts which con-
stituted the breach of trust committed by Strode, and is, conse-
342 - VIRGINIA.
Wormeley et al. v. Wormeley et al.
quently, to be considered, in this Court, as holding the land
subject to the trusts created by the deed of August 1807.
Are Castleman and M'Cormick in a different situation ? The
answer to this question depends on their having notice of the
transactions which constitute the breach of trust. Purchasing a
title depending on the deed of August 1807, they would of course
inspect that deed, and would perceive that Strode’s power to
sell was coupled with the duty of investing the money in other
lands. They would perceive that this was not a case where a
sale is the object of the trust; where it is the duty of the trustee
to sell in any event, and afterwards dispose of the trust money;
but a case in which the great object of the trust was the security
of the estate; and the power to sell was limited to the case where,
“in the opinion of Strode, the land can be sold and the money
laid out in the purchase of other lands, advantageously for those
interested, and that in such case, the lands so purchased were to
be held for the same trusts, &c.” The very deed under which they
claim, then, informed them that their title originated in a trust,
and that it behoved them to inquire, how that trust had been
executed. The parties were all within the reach of inquiry, and
the difficulty of making it was inconsiderable. The deed to
Veitch was dated the 16th of September, 1810, and the deed to
Castleman and M'Cormick was certified for the purpose of being
recorded on 25th of June, 1811. They say in their answer that
they purchased in 1810. Previous to this time, Wormeley had
become dissatisfied with the Fauquier land and they knew it.
Had they not been informed of this, they must have known
that the title to those lands still remained in Strode, and, conse-
quently, that he had not performed his duty as a trustee. With
this knowledge, they enable Strode to sell the Fauquier land.
If the case, rested on these facts, the Court would feel much
difficulty in allowing to these defendants the protection they
claim as purchasers without notice. But the case does not rest
on these facts. In their answer these defendants say, that they
cannot doubt the fairness of the transaction, “because they are
NOVEMBER TERM, 1817. 343
Wormeley et al. v. Wormeley et al.
well satisfied that Strode never received more from Veitch, than
he has given the cestui gue trust credit for.” -
Is it a fair execution of this trust and power, to sell the trust
estate, and give the cestui que trust credit for the amount of
sales? The defendants proceed to deny all fraud in themselves
and all knowledge of fraud in Strode or Veitch. This is not
sufficient. Fraud is an inference of law from facts, and this
answer denies no fact alleged in the bill, nor does it deny a
knowledge of those facts, with which knowledge they are
charged, but states their opinion that no fact which has come
to their knowledge, is fraudulent. The answer then, though it
does not confess, does not controvert notice of the facts which
prove a breach of trust. Is that notice otherwise proved
Benjamin Barnet deposes that they were in treaty with Strode
for the land before the sale to Veitch, and were to have paid
a part of the purchase-money to Veitch in discharge of a debt
due to him from Strode, and that they endeavoured to make an
arrangement with Veitch, but failed; when afterwards this land
was sold to Veitch, these defendants must have known that it
was sold not for the purposes of the trust, but on Strode’s own
account. Their answer avers the opinion that such a sale was
lawful. George Tacket proves that in May 1811, prior to the
execution of the deed from Veitch, while the Wormeley family
were in Frederick on their way to Kentucky, when some doubt
was expressed of continuing their journey, the defendant Castle-
man expressed great uneasiness, lest the journey should not be
prosecuted, because he expected they would receive lands in
that country, in lieu of the lands he had purchased from Veitch.
Still further. It is well known that to be a purchaser without
notice, not only the contract must be made, but the purchase-
money paid before notice, and this should be averred in the
answer.(1) Now there is no such averment, and the fact is
otherwise. It is proved by Mrs. Powell, that upwards of $3000,
(1) See Garnett, executor of Brooke v. Macon et al. : infra, vol. ii. p. 185–
[Editor.] -
3.44 VIRGINIA.
Wormeley et al. v. Wormeley et al.
part of the purchase-money was paid in the fall of 1813, and
spring of 1814, not only after the full notice, acknowledged in
May 1811, but after the institution of this suit. What material
fact, then, was unknown to these defendants P Not one. They
were not ignorant of the facts, but of the law arising on those
facts, Either there has been no breach of trust, and the original
contract is valid, or the defendants are trustees. The Court is
of opinion that they are trustees. But though trustees, they
are not to be considered as mere squatters; the light in which
they are viewed by the counsel for the plaintiffs. They believed
their title to be good and acted on the conviction that it was so.
They trusted to the full power of Strode. They do not appear
to have placed Veitch between them and danger, but, probably,
could not raise the money. While compelled to do equity, they
are entitled to equity. They are entitled to the benefit of the
encumbrances from which the land has been relieved, and of the
permanent improvements which they have made on it, and to
the advances to Wormeley for the support of his family. At
the same time they are accountable for the profits. The ad-
vances are properly chargeable against the profits, but the en-
cumbrances which have been taken up, and the improvements, if
not absorbed by the profits, constitute a charge upon the land.
DECREE.—This cause came on to be heard on the bill, an-
swers, exhibits, and depositions of witnesses and arguments of
counsel, which being fully considered, the Court is of opinion,
that the exchange of land made between the defendant, Hugh
Wallace Wormeley and Thomas Strode, is not valid in equity,
and that the defendant, Thomas Strode, has committed a breach
of trust, in selling the land conveyed to him by the deed of the
5th of August, 1807, for purposes not warranted by that deed;
in misapplying the money produced by the said sale; and in
failing to settle other lands to the same trusts as were created by
the said deed ; and that the defendants, Richard Veitch, David
Castleman, and Charles M'Cormick, are purchasers, with notice
of the facts which constitute the breach of trust committed by
November TERM, 1s17. 345
Wormeley et al. v. Wormeley et al.
the said Thomas Strode, and are, therefore, in equity, considered
as trustees; and that the defendants, David Castleman and Charles
M:Cormick, do hold the land conveyed by Hugh Wallace
Wormeley to Thomas Strode, by deed, bearing date the 5th day
of August, 1807, charged with the trusts in the said deed men-
tioned, until a court of equity shall decree a conveyance thereof.
The Court is further of opinion, that the said defendants are
severally accountable for the rents and profits arising out of the
said trust property while in possession thereof, and that the said
defendants, Castleman and M'Cormick, are entitled to the amount
of the encumbrances from which the land has been relieved by
any of the defendants, and of the value of the permanent im-
provements made thereon, and of the advances which have been
made to the said Hugh Wallace Wormeley, by any of the de-
fendants, for the support of his family ; the said advances to be
credited against the rents and profits, and the value of the said
permanent improvements, and of the encumbrances which have
been discharged, and which may not be abated by the rents and
profits, to be charged on the land itself; and it is referred to one
of the commissioners of the court to take accounts according to
the directions herein given, and report the same to this Court in
order to a final decree.(2) *
(2) In pursuance of the interlocutory decree above recited, the commissioner
to whom the accounts were referred, made a report, which was partially confirmed;
the court reserving some questions for its future decision. “And it being repre-
sented on the part of the plaintiffs, that they have removed to the state of Ken-
tucky, and are about removing to the state of Mississippi, and that it will be
highly advantageous to them to sell the trust estate, and to invest the proceeds of
sale in other lands in the state of Mississippi, to the uses and trusts expressed
in the deed of August 5th, 1807; and it appearing, also, that there is no fund
other than the trust estate, from which the sums due to the defendants, Castleman
and M'Cormick, can be drawn, this Court is further of opinion, that the said
trust estate ought to be sold, and the proceeds of sale, after paying the sum due
to the defendants, Castleman and M'Cormick, invested in other lands in the state
of Mississippi, to the same uses and trusts, &c.” The sale was accordingly de-
creed, commissioners were appointed to make it, and the proceeds directed to be
first applied in satisfaction of the sums found due by the report, and the balance
VoI. I.-2 X
346 f VIRGINIA.
Wormeley et al. v. Wormeley et al.
to be paid to the trustee, to be invested by him in Mississippi lands, “for which
he shall take a conveyance to himself, in trust for the uses and trusts expressed
in the deed of August 5th, 1807, &c.”; and the Court proceeded to revoke the
powers of Thomas Strode, he being an unfit person to act longer in that capacity.
Other orders and decrees were subsequently made in this cause, which it is unne-
cessary to detail further. Finally, the Court set aside so much of the decretal
order of a previous term, as directed the land to be sold to the highest bidder;
and until the appointment of a trustee, the marshal was directed to receive propo-
sitions for the purchase of the land, and to report the same to the court, which
would give such further directions respecting the sale of the land as should then
appear proper. Whereupon the defendants appealed from all the decrees pro-
nounced in the cause. .."
The Supreme Court, Held, 1. That the exchange of the Frederick lands for
those in Fauquier, was invalid, because it was in contravention of the letter and
spirit of the power of the trustee: and because the “stubborn rule of equity”
which forbids a trustee from bargaining with himself, was peculiarly applicable to
this case. 2. That Veitch was a purchaser with notice of the breach of trust;
and that the sale was, consequently, invalid as to him, and he must be considered
in a court of equity as a mere trustee. 3. That Castleman and M'Cormick were
in no better situation, and must also be considered as purchasers with notice, and
consequently, as trustees. 4. That a bona fide purchaser, without notice, must
be so, not only at the time of the contract, but at the time of the payment of the
purchase-money. Decrees affirmed with costs, Johnson, J. dissenting.
An objection to the jurisdiction of the Court was taken in the supreme court
on the ground that Wormeley, the husband, was made a defendant, and so, all
the parties on each side of the cause were not citizens of different states, since
he had the same citizenship as his wife and infant children. [Strawbridge v.
Curtis, 3 Cranch, 267, Corporation of New Orleans v. Winter, I Wheat. 94.]
But the Court said that Wormeley was a nominal defendant, joined for the sake
of conformity in the bill, against whom no decreee was sought, that he appeared
voluntarily, though perhaps, he could not have been compelled so to do : that the
Court would not suffer its jurisdiction to be ousted by the joinder or non-joinder of
mere formal parties, but would rather proceed without them, and decide upon the
merits of the case between the parties who have the real interests before it, when-,
ever it could be done without prejudice to the rights of others. Wolmeley et al.
v. Wormeley et al. 8 Wheat. Rep. 421-[Editor.]
Çittttit Cottrf of tige Jämitti'ſ states,
VIRGINIA, MAY TERM, 1818.
BEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
THE UNITED STATEs v. THE SCHooNER LITTLE CHARLEs.
A libel against a vessel for violating the embargo laws, must contain a substantial
statement of the offence, and it must be made with reasonable precision. But,
inasmuch as the Embargo Act of December 1807, prohibits all vessels, whe-
ther foreign or domestic, registered, or coasting vessels, from Sailing to any
foreign port or place, and the supplemental act of January 1808, annexes the
penalty of forfeiture to any vessel which violates either act, it is not necessary
that the libel should set forth the particular character of the vessel.
The exception in the act exempting foreign vessels from its penalties, in certain
cases, need not be noticed. The libel is good, though it does not charge that
the vessel libelled, was not embraced within the exception.
A vessel is charged with having violated the embargo acts, in departing from a
port of the U. S., and proceeding to Antigua. The proof is, that she was at
Camden, in N. C., in December 1807, and January 1808, and was in the port
of Norfolk, in April 1808. Held: That the report and manifest of her cargo,
with the affidavit made by the captain, before the collector at Norfolk, which
are adduced as proof, that she took in her cargo at Antigua, is admissible
348 VIRGINIA.
The United States v. The Schooner. Little Charles.
evidence. Ist. These documents constitute one entire transaction; they need
not the entry of the ship to make it complete. 2d. In a prosecution against
the ship itself, a forfeiture is incurred by her violation of the act, whether
with, or without the authority of the owner. The vessel is put in action by
the crew, who are guided by the master; she acts, and speaks by the master,
and reports herself by the master; she is, therefore, affected by his report, whe-
ther the owners be so affected or not. But the owner is properly affected by it.
The master is selected by the owner as his agent, amongst other things, for re-
porting the vessel. The report is prescribed by law. It must state, truly, the
voyage, and the place from which she last sailed. The owner then has au-
thorized the master to make the report, and though he may controvert it, yet
it is prima facie evidence.
After a vessel has been seized and libelled, and a forfeiture claimed, the court of
admiralty does not lose its jurisdiction to condemn the vessel, by losing posses-
sion of it.
APPEAL from a sentence of the district court of Norfolk.
The schooner “Little Charles,” with her tackle, apparel,
and furniture, was seized in the port of Norfolk, in 1808, as
forfeited to the United States, by reason of an alleged violation
of the embargo laws. The attorney for the United States, filed
his libel in the district court of the United States at Norfolk,
charging, “that the said schooner Little Charles, on or about
the 19th day of January, 1808, did depart from the port of
Camden, in the district of Camden, in the state of North Caro-
lina, which said port is a port of the United States, and proceed
to a foreign place, to wit, to the island of Antigua, with a cargo
on board, contrary to the provisions of the act of the congress
of the United States, entitled, “an act laying an embargo on all
ships and vessels in the ports and harbours of the United States,’
and of the act, &c., entitled, ‘an act supplementary thereto,”
&c., by which actings and doings, the said schooner Little
Charles hath become forfeited to the United States, and hath
been seized within the jurisdiction of this court, as forfeited, &c.
Wherefore, the United States pray, that the proper and legal
process may be issued in this case, that the said schooner, her
rigging, tackle, apparel, and furniture, may be decreed by this
MAY TERM, 1818. 349
The United States v. The Schooner Little Charles.
court, to be sold as forfeited to the United States ; that the pro-
ceeds of such sale may be appropriated as the law directs,” &c.
The embargo law, referred to in the libel, was passed on the
22d day of December, 1807, and the supplementary law, also
referred to, annexing the penalty of forfeiture for a violation
thereof, was passed on the 9th day of January, 1808. The de-
position of Anthony Butler proved, that the schooner Little
Charles, sailed from Elizabeth City, in North Carolina, on the
19th of January, 1808, with a cargo of corn and staves, bound,
as he was informed by Charles Grice, the owner, for the port of
Charleston, in South Carolina, but in reality, the deponent be-
lieved, having so heard from several sources, for the West
Indies.
The report and manifest of the Little Charles, signed and
sworn to by the master, James Corrmatt, at the port of Norfolk,
on the 31st day of March, 1808, proved, that the schooner had
taken in her cargo, which consisted wholly of West India pro-
ducts, at the Island of Antigua. After the seizure of the “Little
Charles,” and before the trial of the cause, viz.: on the 12th of
April, 1808, the judge of the district court of Norfolk, directed
the marshal, in whose custody she was, to release the vessel, on
the owner’s giving bond, with good and sufficient security to the
full amount of her value, in ready money, to be ascertained by
three disinterested merchants, or shipwrights, and of one hun-
dred dollars in addition thereto, “ conditioned to abide and fulfil
the further proceedings and final decree of the court, to be had
hereafter, upon the subject matter of the seizure and release of
the said schooner.” The vessel was valued at $1800, and a
bond for $1900, condition as required, was executed by Charles
Grice the owner, and Warren Ashley, and the vessel was forth-
with released. *
At the trial of the cause, in the district court of Norfolk, in
December 1809, the court rejected the report and manifest of the
cargo of the Little Charles, signed by the master as aforesaid, as
incompetent testimony, “inasmuch as the ea-parte affidavit of
James Corrmatt, could not be read as evidence in this 'cause, to
350 VIRGINIA.
The United States v. The Schooner Little Charles.
which he is no party, to prove the truth of the facts therein
stated, and this being the only evidence to prove this fact, the
court doth order and decree, that the libel be dismissed.”
From this decree, the United States appealed to this Court.
On the 27th of May, 1818, present, MARSHALL, C. J., and
ST. GEORGE TUCKER, J., the Chief Justice delivered the opi-
nion of the Court, as follows:
MARSHALL, C. J.-The first point made in this case, respects
the pleadings. It is contended, on the part of the claimants,
that the libel is insufficient to support a sentence confiscating the
vessel. ?
The libel is supposed to be defective, because it does not state
the character of the vessel. The Court is not informed whether
the Little Charles was a foreign vessel, an American registered,
or a coasting vessel.
If the embargo acts omitted in their prohibitions any vessels
of either description, the failure to aver the character of the
vessel would certainly be fatal to the libel. The "evidence in
the cause, showing, that in point of fact, the Little Charles had
incurred the penalty of the law, would not supply the want of a
case stated in the libel. Nor would the averment, that the
vessel had departed contrary to the provisions of the acts of
congress, aid the libellants. The libel must contain a substantial
statement of the offence, or it will not sustain a sentence of
confiscation. These principles were, after mature deliberation,
settled in the supreme court, in the case of the schooner Hoppet.
[7 Cranch, 389 ; 2 Con. Rep. Sup. Ct. U. S., 542.] But in the
same case it is laid down, “ that all those technical niceties
which are unimportant in themselves, and which stand only on
precedents, of which the reason cannot be discerned, are not to
be transplanted from the courts of common law into the courts
of admiralty.” All, then, that is required is, that the offence
created by the law should be stated substantially, and with
reasonable precision.
The libel charges, that the schooner Little Charles, did on or
MAY TERM, 1818. 351
The United States v. The Schooner Little Charles.
about the 19th day of January, in the year 1808, depart from
the port of Camden, in the state of North Carolina, a port of the
United States, and proceed to a foreign place, to wit, to the
island of Antigua, with a cargo on board.
The act of December 1807, declares, “that an embargo be,
and hereby is, laid on all ships and vessels in the ports and
places, within the limits or jurisdiction of the United States,
cleared or not cleared, bound to any foreign port or place.”
This prohibitory clause extends to vessels of every descrip-
tion. Foreign and domestic, registered and coasting vessels, are
equally included in it. No vessel of either character could
proceed from an American to a foreign port, without violating
this part of the law. Suppose it pleaded, that this was a coaster,
would this excuse 2 It cannot, therefore, be necessary, in
reason, or under the decision in the case of the Hoppet, so far as
respects this part of the law, to aver the particular character of
the vessel. The defence does not depend on her character.
The only part of the description found in the law, and not in
the libel, is, “bound to any foreign port or place.” These words
are supplied by the charge that she did proceed to a foreign port.
The fact charged in the libel, then, is a violation of the prohibi-
tory part of the act of 1807. It remains to inquire whether the
law contains any other provision which requires a more particu-
lar description of the vessel, or of the offence.
The section provides “That nothing herein contained, shall be
construed to prevent the departure of any foreign ship, or vessel,
either in ballast, or with goods, wares, and merchandize, on
board of such foreign ship or vessel when notified of this act.”
The whole section amounts to this. A general clause for forbid-
ding the departure of all vessels, from a port in the United States,
to a foreign port, or place, is followed by an exception in favour
of a foreign ship, departing in ballast, or with the cargo she had
on board, when notified of the prohibition. If it be necessary in
the libel to assert, that the Little Charles is not within the ex-
ception, then this libel is defective, otherwise it is sufficient.
This point, also, has been considered in the supreme court.
352 VIRGINIA.
The United States v. The Schooner Little Charles.
In the case of the Aurora, [7 Cranch, 382 ; 2 Con. Rep. Sup. Ct.
U. S., 540.,] it is said by the Court, “That in no case can it be
necessary to state, in a libel, any fact which constitutes the defence
of the claimant, or a ground of exception to the operation of the
law on which the libel is founded.”
The third section of the supplemental act declares that, “if any
ship or vessel shall, during the continuance of the act to which
this act is a supplement, depart from any port of the United
States without a clearance or permit, or if any ship, or vessel,
shall, contrary to the provisions of this act, or of the act to which
this act is a supplement, proceed to a foreign port or place, such
ship, &c., shall be wholly forfeited.”
This act expressly annexes the penalty of forfeiture to any
ship or vessel which shall violate either the original or the Sup-
plemental act. It is, therefore, unimportant, so far as respects
the sufficiency of the libel, which act is violated. -
If, as has been argued, different penalties were imposed by the
act, on different descriptions of vessels, the Court would certainly
require that the libel should describe the vessel. But so far as
the Court can understand the law, forfeiture is inflicted on every
vessel, of every description, which shall commit the offence
charged in the libel. Consequently, it is not necessary, for the
instruction of the Court, that the vessel should be described.
The Court is fully satisfied that the libel, in this case, is suffi-
cient to sustain a sentence of condemnation, should the testimony
prove the offence charged in it to have been committed.
2. The Court will next proceed to examine that testimony.
In doing so, the caption which the clerk has prefixed to the docu-
ments in the record, will certainly be disregarded, and only the
documents themselves be considered as testimony. :
The offence is, departing from a port in the United States, after
the passage of the first and second embargo acts, and proceeding
to Antigua, which is a foreign port, or place.
That the Little Charles was in the port of Camden, in North
Carolina, in December, 1807, and January, 1808, when both
those acts passed, is not controverted. That she was in the port
MAY TERM, 1818. 353
The United States v. The Schooner Little Charles.
of Norfolk, on the Sth of April, 1808, while they were in force,
is equally clear, because she was then seized in that port. The
inquiry is, had she, in the mean time, proceeded to a foreign
port 2 -
The report and manifest, with the affidavit, made by the cap-
tain, before the collector of the port, at Norfolk, if admissible, in
the form in which they appear in the record, are certainly, in the
absence of all exculpatory testimony, sufficient to satisfy the mind
that the Little Charles took on board, at Antigua, the cargo which
was imported into Norfolk, and, consequently, that she had vio-
lated the embargo laws.
The objections to the admissibility of this document, are
1. That it is only part of a transaction.
2. That, in a criminal case, the declarations of the captain can-
not affect the owner. -
It will be unnecessary to inquire whether, in any case, part of
a transaction may be received as testimony. The general princi-
ple, that it may not, is certainly correct ; but it might be impro-
per to say, that this general rule admits of no possible exception.
The inquiry is, at present, unnecessary, because the Court is
clear in its opinion, that this is not a part of, but is an entire
transaction. -
The document is a report and manifest, as required by law, with
the affidavit annexed, which is also required. Had the report
and manifest been offered without the affidavit, or the affidavit
without the report and manifest, it would have been part of a
transaction. But offered together, they form one entire trans-
action, requiring nothing for its completion.
It has been argued, that the entry ought to be produced. But
the entry is a distinct and independent act, which must be pre-
ceded by, but may not follow the report and manifest. It is to be
made by a different person, and if made, may be deferred fifteen
days after the report. In the meantime, a seizure, as in this case,
may prevent an entry. The validity of this objection cannot be
admitted.
VoI. I.-2 Y
354 i VIRGINIA.
The United States v. The Schooner Little Charles. -
The Court will next inquire, whether this document can affect
the vessel.
The argument, that in criminal cases no authority can be
given, that the character of principal and agent disappears, and
the parties become accomplices, will not be controverted. If
this was a prosecution against the owner personally, and the con-
fession of the master was adduced, to prove that he acted under
the authority of the owner, the argument would be entitled to
great consideration. But this is not a proceeding against the
owner; it is a proceeding against the vessel, for an offence com-
mitted by the vessel, which is not less an offence, and does not
the less subject her to forfeiture, because it was committed with-
out the authority, and against the will of the owner.
It is true, that inanimate matter can commit no offence. The
mere wood, iron, and sails of the ship, cannot, of themselves,
violate the law. But this body is animated and put in action by
the crew, who are guided by the master. The vessel acts and
speaks by the master. She reports herself by the master. It is,
therefore, not unreasonable, that the vessel should be affected by
this report.
But this vessel is the property of another; and his property,
it is said, ought not to be wrested from him by evidence, which
would be inadmissible in an ordinary question, concerning pro-
perty.
The Court thinks otherwise. -
The master is selected by the owner, as his agent, for the pur-
pose, among others, of reporting the vessel on her coming into
port. The report is not a criminal act, but one prescribed by
law. It must state, truly, the voyage, and however criminal
that voyage may be, in reporting it, the master is in the precise
line of his duty, and in the execution of an authority, insepara-
ble from his character as master. This report, then, which is in
the very terms prescribed by law, contains, according to the
mandate of the law, an averment of the place from which the
vessel last sailed. This averment, then, the owner has autho-
rized the master to make for him; and although he may cer-
MAY TERM, 1818. 355
The United States v. The Schooner Little Charles.
tainly be permitted to controvert it, the Court deems it prima
jacie evidence of the fact. Such evidence has often been consi-
dered, in the supreme court, sufficient to warrant a forfeiture in
the absence of that testimony, which would be in the power of
the claimant, if innocent, and was so considered in the case of
the Aurora, already cited.
But admitting the sufficiency of the libel, and the proof, it is
contended, that the Court has lost its jurisdiction, by losing pos-
session of the thing to be condemned. The stipulation which is
substituted for the vessel was, it is said, irregularly taken, and,
consequently, cannot be considered as a substitute.
That possession of the thing is necessary, as a foundation for
the jurisdiction of the court, is, in general, true. There must be
seizure to vest the jurisdiction. But it is not believed that the
continuance of possession, is necessary to continue the jurisdic-
tion. It is a general principle, that jurisdiction, once vested, is
not divested, although a state of things should arrive in which
original jurisdiction could not be exercised. No authority has
been found, nor is any reason perceived, for making this case an
exception to the general rule. -
If, in proceedings in rem, the vested jurisdiction of the Court
could be divested by the loss of the thing, the reason must be,
that as the thing could neither be delivered to the libellants, nor
restored to the claimants, the sentence would be useless, and
courts will not render judgments which can operate on nothing.
But this reason will not apply to any case where the judgment
will have any effect whatever : if, for example, the liability of
the officer for making the seizure, to damages, be dependent on it,
or if the parties have, by consent, substituted other property to
abide the fate of the suit. However this may be, the Court is
not satisfied that its jurisdiction is lost by the circumstance that
has occurred, and is of opinion, that the sentence of the district
court be reversed, and the Little Charles be condemned and for-
feited.
©ircuit Cottrt of the gamittu states.
VIRGINIA, NOVEMBER TERM, 1818,
13 EFG RE
BioN, JOHN MARSHALL, Chief Justice of the United States.
RoNALD’s HEIRs v. BARKLEY ET AL.
It is the well settled modern practice, that the officer who executes a writ of elegit,
does not put the creditor in actual possession of the land, but gives him only a
legal possession, which he must enforce by ejectment. If the actual possession
be withheld by the owner of the land, without the fault of the tenant by elegit,
he will have a right to hold over, after he acquires actual possession, for the period
during which his debtor held the adverse possession; but if, from the act of the
creditor himself, or a third party, the rents and profits of the extended lands be
not received, the creditor cannot hold over, but his estate expires when his debt
might have been satisfied.
A judgment was obtained, in 1799, against two infant heirs, and in August, 1800,
a writ of elegit was sued out on this judgment, and executed on lands and per-
sonalty of the infants. The heirs retained possession of the lands about five
years, when ejectment was brought by the tenant by elegit to reduce them into
his possession. The guardian of the infants, in the meantime, had been in per-
ception of the profits, and had, for the most part, failed to apply them in dis-
charge of the debt for which the lands were extended. In 1807, the extended
lands were sold under a decree, at the suit of other creditors, subject to the elegit.
In 1805, the ejectment was brought by the elegit creditor, and, pending that
suit, viz., on the 28th of January, 1806, the guardian of the infants conveyed a
NOVEMBER TERM, 1818. 357
Ronald’s Heirs v. Barkley et al.
tract of land which he had purchased with the funds of the infants, and for their
use, in trust, to secure the debt due to the elegit creditor, and in exoneration of
the lien created by the elegit, and the ejectment was dismissed. The guardian
had purchased the land conveyed by him in trust, at a sale made by a commis-
sioner of the court of chancery, but the legal title was not conveyed to him, and
in the trust deed, the rights under the elegit were reserved until a legal title
could be made. A suit being brought by the heirs to compel a conveyance to
to their guardian in trust, discharged of that encumbrance, it was
Held : I. That although where ejectment is brought within reasonable time from
the service of the writ of elegit, it may amount to prima facie evidence, that the
possession, at the institution of the suit, was originally adversary, and the creditor
may be entitled to hold over; yet, in this case, the creditor having postponed
the assertion of claim, for five years, the acquiescence in her possession of
the heirs, must be inferred, and that the purchasers are not responsible for the
profits which accrued during the time that the lands were held by the heirs,
with the acquiescence of the elegit creditor. They are liable only for the profits
accruing during the unexpired term.
2. That the occupation of the extended lands, by the infants, must be considered
as an occupation under an implied contract, which the guardian had a right to
make for them, and that the perception of the profits by him, is, in this suit, to
to be considered as a perception by them.
3. That the power of the guardian over his ward's estate, enabled him to bind the
land conveyed in the deed of the 28th of January, 1806, to the extent of the
estimated value of the lands bound by the elegit, during the period for which those
lands remained in the possession of the infant heirs, with the consent of the
elegit creditor. -
IN November, 1799, Anne Barkley obtained a judgment in
this Court, against Elizabeth and Anne Ronald, infant heirs of
Ronald, for the sum of $3011 50, with interest, at the rate
of five per cent., from the 20th of June, 1791, till paid. On this
judgment, a writ of elegit was issued, which was levied on land
and negroes, in the counties of Goochland and Powhatan, on the
6th and 8th of August, 1800, respectively, which were estimated,
by the jury, at the yearly value of $555 50. -
These lands remained in the peaceable possession of Ronald’s
heirs, until some time in the year 1805, when ejectments were
brought by Anne Barkley, to obtain possession of them.
On the 28th of January, 1806, an agreement was entered into,
between John Wickham, the attorney of Anne Barkley, and
358 VIRGINIA.
Ronald's Heirs v. Barkley et al.
William Bently, one of the guardians of Ronald’s heirs, in pur-
suance of which a deed was executed by Bently, to Edward
Carrington and John Wickham, in trust, to secure the payment
of Anne Barkley’s debt, with interest, at 6 per cent., conveying
a tract of land, containing 600 acres, lying in the county of Gooch-
land, which was sold under a decree of the court of chancery,
of this state, in July, 1797, and of which William Bently be-
came the purchaser, but of which he had received no conveyance.
The rights, under the writ of elegit, were reserved, as Bently
did not possess the legal title to the land in Goochland, and the
writs of ejectment were dismissed. Bently, having failed to
make the payments, stipulated in this deed, the attorney of Anne
Bently advertised the Goochland land for sale, under the deed
of trust. The sale was forbidden by Ronald’s heirs, who alleged
that the land was purchased by Bently, for them, which allega-
tion is fully sustained by the testimony in the cause. In Decem-
ber, 1807, on the motion of Anne Barkley to dissolve the
injunction, the court directed the marshal to rent out the extend-
ed land, and the trust land, which was accordingly done.
If the course of the elegit had not been arrested by any act of
the parties, the debt would have been discharged in October
1810, but in consequence of the lands remaining in the posses-
sion of the plaintiffs, or of their guardian Bently, and of his
failure to pay the yearly value at which they were extended, a
considerable part of Barkley’s debt remained unpaid.
At the suit of other creditors, the extended lands were sold
by order of this Court, subject to the incumbrance created by
the elegit already mentioned. The sale was made in August
1807, and the purchasers were informed, by the commissioner
who conducted it, that the debt of Barkley would be paid by
the operation of the extent, in October 1810.
The parties, defendants to this suit, were Anne Barkley, the
tenant by elegit, John Wickham, her attorney and surviving
trustee under the deed of January 28th, 1806, William Bently,
the guardian of the plaintiffs and grantor in that deed, James
Pleasants, the commissioner who sold the land under the decree
NOVEMBER TERM, 1818. 359
Ronald’s Heirs v. Barkley et al.
of the court of chancery in 1797, and the purchasers of the
extended lands, at the sale of August 1807.
The plaintiffs insisted, that as their guardian was indebted to
them in a great amount, and paid for the land in Goochland, not
with his own funds, but with theirs, they were entitled to that
land, unincumbered by his contract.
The defendant, Anne Barkley, contended, that she had still a
right to satisfy her judgment out of the extended lands, or, if
not, out of the land contained in the deed of January 1806.
The purchasers insisted, that they were not liable beyond the
legal operation of the extent, viz., from the date of their pur-
chase until October 1810. Bently did not answer, and the
answer of James Pleasants was merely formal.
MARSHALL, C. J.-1st. The Court will first consider the
claim of Anne Barkley on the purchasers.
It seems well settled, in modern practice, that the officer who
executes an elegit does not put the creditor in actual possession
of the land, but gives him only a legal possession, which he must
enforce by ejectment.
It seems, also, to be settled, that if the actual possession be
withheld by the owner of the land, without the fault of the
tenant by elegit, he will have a right to hold over ; but if, from
the act of the creditor himself, or of a third person, the rents and
profits of the extended lands be not received, the creditor cannot
hold over, but his estate expires when his debt might have been
satisfied.
How do these principles apply to the facts of this case ?
From August 1800, when the inquest was taken, to some time
in the year 1805, when the ejectment was brought, the creditor
appears to have acquiesced entirely in the possession of Ronald’s
heirs. There is no reason to suspect, that their possession was
not with her full assent other than is furnished by the ejectment
brought in 1805. It will not be denied, that an ejectment brought
within a reasonable time may amount to prima facie evidence,
that the possession, thus adversarily maintained, was originally
360 VIRGINIA.
Ronald’s Heirs v. Barkley et al.
adversary; but it cannot be admitted, that the creditor, after this
long and quiet acquiescence, can be allowed to say, the she has
been held out against her will. In this case, the creditor does
not say it. She says, she was not bound to bring her ejectment.
If, by this, her counsel intends to say, that she might, for an.
unlimited time, leave Ronald’s heirs in the perception of the
profits, and keep her elegit in force, I answer, that I think the
law is otherwise. It has been adjudged and settled, that the
estate by elegit continues, not until the debt be actually satisfied,
but until it might have been satisfied. This principle is
entitled to peculiar respect, where third persons are interested.
The creditors of Ronald had rights which could not be sus-
pended or impaired by these arrangements.
Nor can it avail Mrs. Barkley, as against the purchasers, that
they received the possession from Ronald’s heirs, subject, as
they held it, to the elegit. They received a right to the pos-
session, whenever the elegit should, in law, expire, from the
creditors at whose suit the lands were sold ; and their taking
immediate possession, could not alter or postpone the right,
unless by special contract. 4.
I think it, then, too clear for controversy, that the profits for
the time between the inquest and the service of the ejectment,
are to be deducted from the debt, so far as respects the purcha-
sers, in like manner as if they had been actually received. The
time between the service of the ejectment, and the deed of
January 1806, may admit of more doubt.
The non-delivery of possession, when demanded by the te-
nant by elegit, does not appear to me to be a tort, for which the
guardian is alone personally responsible. The possession being
the possession of the infants, continued for them by their guar-
dian, I rather incline to the opinion, that it is such a holding by
the infants, as prolongs the term of the elegit. I have felt, and
do feel, great doubts on this part of the case. But it must be
decided, and I think the objections to this, less weighty than
those to the contrary opinion.
If the term might have been prolonged, this is the legal effect
2-’
NOVEMBER TERM, 1818. 361
Ronald’s Heirs v. Barkley et al.
*-*-
of the ejectment on the estate by elegit, and by that legal effect
the purchasers are bound. I doubted, whether the purchasers
could be required to take notice of an ejectment, which was dis-
missed ; but, be this as it may, they are bound by the elegit,
according to its legal extent, of which they must take notice.
I come next, to consider the claim of Mrs. Barkley, on the
lands on the tract of 600 acres in Goochland, which is contained
in the deed of January 1806. This claim is rendered one of
peculiar hardship, by the waste and havoc committed by this
guardian, on the estate entrusted to his care. To determine,
whether any part of the loss, and if any, what part, ought to
fall on Mrs. Barkley, requires an attentive consideration of the
transactions which have taken place.
When the judgment in question was obtained, and the writ of
elegit was issued, the land on which it was served, was in pose
session of Ronald’s heirs. This possession was not changed by
the service of the writ. If, as has been already decided in con-
sidering the rights of the purchasers, they remained in posses-
sion, with the assent of Anne Barkley, they must be considered,
unless the contrary appear, as retaining that possession, under
an agreement to pay the annual value, at which the land was
estimated in the inquest. As infants, they could not themselves
make this contract. Could their guardian legally make it for
them P
The power of guardians does not seem to be precisely defined.
They may certainly do many acts, which bind the estate of their
wards ; and among others, they may remove encumbrances and
make leases, especially if such acts are for the benefit of the
infants. This elegit was an encumbrance, which I am not satis-
fied, the guardian might not contract to remove, in whole, or in
part. Nor do I perceive, if he may make a lease of the lands
of his ward, why he may not get in a lease, or an encumbrance,
in the nature of a lease, of that estate.
It is, I believe, not to be controverted, that these acts may be
directed by a court of chancery, and would be directed, on being
satisfied, that the proposed contract was for the interest of the
VoI. I.-2 Z
362 VIRGINIA.
Ronald’s Heirs v. Barkley et al.
infants. And, I think, few will deny, that had an application
to that court, been made in this case by the guardian, its Sanc-
tion would have been given to the acquisition of this estate by
elegit, unless some suspicion existed of his unfaithfulness, in the
performance of his trust. The infants were in possession of a
number of slaves, and of a large landed estate. There are few,
who would not think it more advisable, to retain both in their
own possession, if practicable, than to let the lands be cultivated
by a tenant by elegit, and the slaves, composed as they are, of
men, breeding women, and children, to pass into the hands of the
highest bidder. No court, in a common case of this description,
would refuse its sanction to a contract, by which the infants
retained possession of the property.
The great objection, generally, to the exercise of the power
of a guardian to purchase, is, that he changes thereby the na-
ture of the estate, by converting personal into real estate.
Even this might be sometimes allowed, as would appear from
the opinion of the chancellor, in the case of Inwood v. Twine,
Ambler, 407. But, in this case, there is no change in the nature
of the estate. The whole operation is, the taking in an encum-
brance, in the nature of a lease for years.
If I was of opinion, that this was a case in which a previous
application to a court was necessary, I should be much inclined
to say, that a contract, which the court would certainly have di-
rected, ought to be protected, as far as respects a third person.
But I do not think an application was necessary. The general
power of a guardian, in my opinion, extends to it ; and, as an
application to a court must be attended with expense, there is no
reason why it should be made. Had the guardian honestly ap-
plied the profits of the term, this transaction could not have
been shaken in any court; and for his misapplication of them,
the creditor cannot be responsible. *
I am, therefore, of opinion, that the occupation of the extended
lands by the infants, must, under the circumstances of this case,
be considered as an occupation under an implied contract, which
the guardian had a right to make for them, and that the percep-
NOVEMBER TERM, 1s18. scs
Ronald’s Heirs v. Barkley et al.
tion of the profits by him, is, in this suit, to be considered as a
perception by them.(1)
(1) Our act of assembly authorizes the superior courts of chancery, upon the
petition of any of the parties interested, by order of court, made after hearing
the parties, to empower the guardian to make or take a surrender of a former
lease, or to take or make a new lease as the case may require, and as it shall seem
most to the advantage of the infant; out of whose estate any fine that may be
advanced, and all other just expenses that may be incurred, in order to obtain a
new lease to him, shall be reimbursed; and the new lease shall not only be charge-
able with such fine and expenses, but shall remain subject to all encumbrances
which the lease surrendered would have been subject to. 1 R. C. of 1819,
p. 408, § 13, 14. Act of 1785, from the 29 Geo. 2. ch. 31.
In Hedges and Wife v. Riker et al. 5 John. Ch. Rep. 163, the testatrix de-
vised to her executors, in trust, for the sole use and benefit of her daughter (the
plaintiff), the whole income, rents, and profits of her estate, real and personal, sub-
ject to the payment of the legacies and dispositions afterwards mentioned : the
said rents, &c. to be paid to the daughter during her natural life, for her proper
use and benefit, and that of her children, if any, and after her death, to her child
or children, in fee. The will empowered the executors, “to sell and dispose of so
much of the real estate as should be necessary to fulfil the will.” Upon a bill filed
by the daughter, (and her husband,) praying that the executors should be decreed
to make leases of portions of the real property, on certain stipulated conditions
for the term of twenty-one years, the principal defendants being infants, Chan-
cellor KENT said: That he inclined to think that the words of the will, giving to
the executors power “to sell and dispose of so much of the real estate as should
be necessary to fulfil the will,” would authorize them to dispose of vacant lots by
lease, aceording to the prayer of the bill, inasmuch as such a disposition was re-
quisite to carry into effect the intentions of the will. That the greater power
included the less, and would authorize, in case of necessity, a more confined and
limited exercise of the power: That a lease for years was still a disposition of
the estate, within the terms of the power; but that without resorting to the power,
the general jurisdiction of the court over the property of infants, was adequate
to confer the authority. The court stood, as Lord NoTTINGHAM observed, in
loco parentis ; and it was understood to be clearly settled, (3 Johns. Ch. Rep. 370),
that the Court might change the estate of infants from real into personal, and
from personal into real, whenever it deemed such a proceeding most beneficial
to the infants. It was declared by the lords commissioners in Cecil v. Earl of
Salisbury, (2 Vern. 224,) that the Court had often decreed building leases, for
sixty years, of infants' estates, when for their benefit. The prayer of the bill was
granted accordingly.—[Editor.]
364 VIRGINIA.
Ronald's Heirs v. Barkley et al.
If this principle be correct, not much diffieulty remains in the
case. -
The land conveyed in trust by Bently for the use of Barkley,
was purchased by him in his own name, under a verbal declara-
tion that he bid for the plaintiffs. In consequence of this decla-
ration, he purchased the lands at about half their value, and the
infants have the benefit of this purchase. As the commissioners
could not have sold to the infants and returned them as the pur-
chasers, Bently was necessarily the legal purchaser, and was so
returned, and must have been so returned, to the court of chan-
cery. The right of the infants is an equity growing out of the
conduct of Bently, which is extrinsic of the regular proceed-
ungs, and forms no part of them. The commissioner of the
court, acting in strict conformity with his power, is, I think, so
far as this question goes, not to be distinguished from a person
holding the legal estate. All the rights of those who were par-
fies to the decree are in him. Bently is, therefore, to be con-
sidered as purchasing from the person holding the legal estate.
If this be correct, the right of a person holding Bently’s title,
were he a mere purchaser from or creditor of Bently, would be
very much in the situation of Williamson, in the case decided
in the court of appeals.(2) But Mrs. Barkley presents herself in
(2) Williamson v. Gordon's Ex’ors. et al., 5 Munf., 257. In that case, St.
Clair executed a deed of trust to Clarke, for the benefit of certain creditors of -
St. Clair, and the deed was duly recorded. Subsequently, St. Clair, being in-
debted to Gordon by bond, on which suit was pending, agreed to confess judg-
ment, and to secure the payment thereof by a deed of trust on the property
conveyed in trust to Clarke. After the agreement was executed, St. Clair con-
fessed the judgment, but did not eacecute the deed of trust. Some months after
this agreement was entered into, Williamson purchased of St. Clair, with the
assent of the trustee, the property conveyed to Clarke, without notice of the
agreement between St. Clair and Gordon, and St. Clair conveyed the same to
'Williamson, by deed of bargain and sale. The deed to Williamson was not
recorded, until five years after its execution; but possession was immediately de-
livered to him, and he, thereupon, undertook to pay, and actually paid, the debts,
to secure which, the deed from St. Clair to Clarke was executed : but Clarke
mever made any release or conveyance to Williamson. Gordon filed his bill
NOVEMBER TERM, Isis. 365
Ronald’s Heirs v. Barkley et al.
a still more favourable point of view. A part of her debt is
for money received for the plaintiffs, by a person who had a
right to receive it. If it was diverted from its proper course,
and wasted, it is in no degree the fault of Barkley. Hard then
as it is on the infants, to bear the losses consequent on the mis-
conduct of the guardian, I cannot relieve them from it, by
throwing it upon Barkley. t
So far as the money of Barkley was received by Bently, for
the use of the plaintiffs, her equity appears to me, to be still
superior to theirs; and if the conveyance of January 1806, should
be construed to make the grantees, trustees for Ronald’s heirs,
still I think their equity stands charged with the rights of Bark-
ley on them. -
The result of this opinion is, that the trust estate is bound to
Barkley for the balance remaining unpaid, of the value of the
extended lands, from the date of the inquest, until the institu-
tion of the ejectment, and from the 28th day of January, 1806,
until August 1807, when the extended lands were purchased
under a decree of this court. That the purchasers under that
decree, ought to pay the annual value of the lands by them seve-
rally purchased, as estimated in the inquest, until the debt of
Anne Barkley might have been made, adding thereto, the time
against St. Clair, (without making Williamson a party,) to carry St. Clair's
agreement into effect, and the chancellor decreed a sale. The commissioner of the
court advertised the property, and Williamson filed his bill of injunction, making
St. Clair and Gordon's executors, parties defendants, praying an injunction, to
prevent the intended sale, and a decree quieting the complainant in his possession,
or that the money advanced by him should first be reimbursed out of the pro-
ceeds of sale, and for general relief. The chancellor, on the hearing, dissolved
the injunction, and the plaintiff appealed. The court of appeals said, that the
decree of the chancellor was erroneous, inasmuch as Williamson had the prefer-
able right to call for the legal estate of the premises in question, outstanding in
the trustee, Clarke, and that he should, consequently, have been protected from
the claim of Gordon's executors: and the court decreed, that the injunction
awarded to Williamson, be made perpetual, and that he be quieted in his posses-
sion, &c.—[Editor.] - r
366 VIRGINIA.
Ronald's Heirs v. Barkley et al.
during which the ejectment, brought by Anne Barkley for those
lands, was depending. -
If any loss has been sustained, by the rents of the extended
lands, since they were rented out by the officer of the court;
that loss must be borne by the owners, unless there be particular
circumstances, which should place it elsewhere. -
The result of the best consideration the Court can give this
subject, is, that upon receiving what remains due to Anne Bark-
ley, according to the judgment of the Court, and the inquest of
the jury, for the time that the extended lands were held by the
plaintiffs, with the acquiescence of the said Barkley, John
Wickham, the surviving trustee in the deed of January 1806,
ought to convey to the plaintiffs, and that James Pleasants, the
surviving commissioner, acting under the decree of that court,
ought to be considered as a trustee for Anne Barkley, until so
much of her debt as, according to this opinion, the plaintiffs
ought to pay, be satisfied, and then to the use of the plaintiffs.
DECREE.—1. That the tract of land, containing 600 acres,
purchased by William Bently, in January 1797, and afterwards
conveyed by him to Edward Carrington, and John Wickham,
was purchased, in trust for the plaintiffs, and ought to be con-
veyed to them.
2. That Anne Barkley has a lien on said land, for so much of
her judgment, under which the lands of the plaintiffs, in Powha-
tan and Goochland, were extended, as remains unpaid, and is
equal to the annual value of said lands, while they remained in
possession of the plaintiffs, with the assent of Anne Barkley,
amounting, by an estimate made by the parties, to $1143 46.
3. That the purchasers of the extended lands, Fenwick, John-
son, and M*Coull, pay to Anne Barkley, the annual value of the
extended lands, respectively purchased by them, from the date
of their purchase, until the judgment might have been satisfied,
adding thereto the value for the time that the ejectment brought
by Anne Barkley, against William Bently, was pending.
4. That on the plaintiffs paying to Anne Barkley, $1143 46,
NOVEMBER TERM, 1818. 367
The Thomas & Henry. Fletcher & Parker, Claimants.
with interest from the date of this decree, John Wickham con-
vey to the plaintiffs, without warranty, the tract of land convey-
ed to Edward Carrington, and said Wickham, by deed of 28th
of January, 1806 : and that James Pleasants, convey to the
plaintiffs, the same tract of land, on their producing to him the
receipt of Anne Barkley, showing that the sum of $1143 46
has been paid, and his receiving evidence, that the money has
also been paid, for which the same land was sold by him, as
commissioner, to William Bently.
THE Schoon ER THoMAs & HENRY (FLETCHER and PARKER,
Claimants,) v. THE UNITED STATEs.
Before Hon. J oHN MARSHALL, Chief Justice of the United States,
A deposition taken de bene esse, was offered in the district court on behalf of the
United States, to which it was objected, “that it was not taken and returned
according to law.” Held: In the appellate court, that this objection must be
considered as applying to it as a deposition in chief, and does not dispense
with the necessity of proving those circumstances which would have entitled
the attorney for the United States to read it, as a deposition taken de bene esse.
Where the party, against whom a deposition is taken, expressly waives all objec-
tion to it, this general waiver must be understood as extending to the deposi-
tion, only in the character in which it was taken, and not as imparting any
new character to it, not intended by the party taking it. Thus, where a
deposition was taken de bene esse, and the adverse party waived all objection,
such a waiver does not make it a deposition in chief.
A deposition, taken before the trial, of an informer, who is entitled, under the act
of congress, to a portion of a fine, forfeiture, or penalty, is not admissible
evidence. The act of congress only makes such an informer a competent
36s VIRGINIA.
The Thomas & Henry. Fletcher & Parker, Claimants.
witness, when “he shall be necessary as a witness on the trial;” of whieh
necessity, the court must judge after hearing the other testimony. -
In prosecutions for a violation of the act regulating the collection of duties on
imports and tonnage, the United States are not required to prove guiſt, but the
accused must prove innocence. If, in any case, such a ſegislative provision
can be justified, it is in prosecutions under this act, because the violation is
generally perpetrated under all the secrecy that ingenuity can devise ; and the
means of proving innocence, at least to a reasonable extent, which is all that
can be required, are in possession of the accused. . - .
A claim to a vessel and cargo filed in an admiralty cause, though sworn to, is not
evidence. The law does not allow to the affidavit made to them, the dignity
of testimony. If it amounts to any thing, it is to no more than “the exclusion
of a conclusion.” - - - e
A party, who offers as evidence in an appellate federal court, a deposition, taken
de bene esse, must show, that the requisites of the judicial act have been
complied with, viz.: that the deponent is dead, out of the United States, or
gone to a greater distance than 100 miles, &c., and, unless he does this, the
deposition cannot be read. -
The act of congress, requiring masters of vessels, &c., to make a report of their
cargo, &c., does not forfeit the cargo for the omission of any specific article,
constituting a part of the cargo, but only the article so omitted. Consequently,
it is error in the court below, to render sentence of condemnation, forfeiting a
portion of a cargo, unless the libel charges, that that particular portion was
omitted in the report. . . . .
THIS cause came up on an appeal from the district court.
The schooner “Thomas and Henry” was libelled in the district
court of Norfolk, for acting in violation of the 30th section of the
act of congress, passed the 2d of March, 1799, entitled, “an act to
regulate the collection of duties on imports and tonnage.” [Story’s
Laws of the U. S., vol. 1., ch. 128., § 30.
The libel charges, 1. That the schooner “Thomas & Henry”
arrived from a foreign port, within the United States, and within
the jurisdiction of this Court, having on board a cargo consisting,
principally, of distilled spirits, and that part of the said cargo, of
the value, in all places, of more than $400, were unladen and de-
livered from on board the said schooner without any permit.
2. That the master of the said schooner did not, within forty-eight
hours after his arrival, and the arrival of the said schooner, make
any report, in writing, to the surveyor, acting as inspector of the
NOVEMBER TERM, 1818. 363
The Thomas & Henry. Fletcher & Parker, Claimants.
revenue, for the port aforesaid, of the facts and circumstances re-
quired by law to be so reported. The libel concludes by pray-
ing that a citation may issue against the “Thomas & Henry,”
her tackle, apparel, and furniture, and her cargo, so far as the
same consists of foreign distilled spirits; that the same may be
condemned as forfeited to the United States, to be sold by a de-
cree of the court, and the proceeds distributed according to law.
Thomas Fletcher filed his claim, setting forth that he was joint
owner with H. Parker, of the American schooner “Thomas &
Henry,” and of thirty-four hogsheads of rum, and twenty barrels
of limes, now libelled, and demanded the said vessel, her tackle,
apparel, furniture, and cargo, to be restored to him. The claim-
ant states, that he, and H. Parker, both native citizens of Vir-
ginia, and residents of the county of Accomack, are the owners
of the “Thomas & Henry,” of which vessel, Thomas Fletcher, jr.
is master; that the said vessel, on the fifth day of March, 1811,
while lying in the district of “Folly-landing” where she had, a
few days before, arrived, from the island of St. Bartholomews,
with the rum and limes aforesaid, and while the custom-house
officers of the United States were actually on board, engaged in
gauging and measuring, the cargo was taken possession of by the
revenue cutter, and conducted to the port of Norfolk, and there
libelled, although “no act had been done, or omitted, on the part
of the owners, or master of the said vessel, relative to the laws
of the United States, whereby the vessel, or her cargo, became
liable to seizure, or forfeiture ; that no part of the said cargo,”
(thirty-four hogsheads, which were seized,) “so brought in, was
landed prior to the said seizure, but that the whole which was
imported, was on board at the time of the seizure.”
A similar claim was filed by Henry Parker, the other joint
OW ner. - - .
In the district court, the deposition of Thomas W. Butler, the
mate of the revenue cutter, taken in open court, was introduced
by the attorney for the United States. Butler states, that he was
ordered by the captain of the cutter, to take possession of the
“Thomas & Henry ;” that he went in a boat into Pungoteague
VoI. I.-3. A -
370 VIRGINIA.
The Thomas & Henry. Fletcher & Parker, Claimants.
river, where he found the vessel in the act of discharging two
hogsheads of rum, part of the cargo on deck, with a lighter along-
side, and two hogsheads in the slings, and the crew breaking up
the cargo in the hold ; that he asked the captain of the vessel for
his authority for landing his cargo. The captain stated that he
had entered his vessel, but upon being asked for his permit to
land, he produced none. The deponent further stated that the
cutter was sent from the port of Norfolk, by the direction of
the collector of the district of Norfolk and Portsmouth, to take
possession of the said schooner “Thomas & Henry,” in conse-
quence of information given by the mate and some of the
crew of the said schooner: That at the time he took possession,
and made seizure of the said vessel, she had on board thirty-four
or thirty-five puncheons of rum, that after taking possession of
her, with such cargo as she had on board, he proceeded with her
to the port of Norfolk, where she was surrendered by deponent
to the marshal. Upon being interrogated by the court, the wit-
ness stated, that a part of the cargo had been landed before he
took possession of her. Witness was obliged to change the trina
of the vessel, she being entirely out of trim. There was a large
vacancy midships, occasioned, as he believed, by the removal of
a part of the cargo. She was, consequently, too much by the
Stern.
There was no countervailing evidence introduced by the claim-
ants, in the district court, but at the trial in the circuit court, the
depositions of Robert Pitts, George P. Barnes, and William Pitts,
taken subsequent to the trial in the district court, were offered.
The deposition of Robert Pitts, stated, that he was on board the
schooner “Thomas & Henry,” at the time that the boat from the
revenue cutter boarded her and took possession, with intent to
assist the inspector, George P. Barnes, in moving and marking
the cargo ; that it was necessary to move the hogsheads out of
the way to get at the cargo, to guage and mark it, and that there
was, at that time, no appearance of any part of the cargo having
been removed. - -
George P. Barnes stated, that he was an inspector of the revenue
NOVEMBER TERM, 1818. 3.71
The Thomas & Henry. Fletcher & Parker, Claimants.
for the district of “Folly-landing,” in 1811, and that the schooner
“Thomas & Henry,” Captain Thomas Fletcher, jr., arrived at
Pungoteague, in the port of Folly-landing, in March, 1811 : that
immediately after the arrival of the schooner, he went down to
Pungoteague, and went on board to inspect her cargo : that while
he was on board, and was in the act of inspecting her cargo, and
marking the hogsheads of rum, that a boat came alongside with
the officer of a revenue cutter, belonging to the United States,
commanded by a Captain Hamm : that some desultory conversa-
tion took place between the deponent, and the officers of the
cutter, and that they either told him, or he was impressed with the
belief, that his authority had ceased as an inspector on board the
said schooner, and that he left her and returned home. To the
best of deponent’s recollection, there were about thirty or thirty-
five puncheons of rum, and he did not discover any particular de-
ficiency of cargo midships of said schooner, or that there was any
breakage of the cargo in the midships. /
William Pitts was employed on board the “Thomas & Henry,”
to assist in moving the cargo, for the inspection of the custom-
house officer; and while he was so employed, in the presence of
the custom-house officer, the said schooner was seized, with her
cargo, by Captain Hamm, of the revenue cutter. Witness stated,
that the floor of the said schooner was then covered, from main to
foremast, with hogsheads of rum, and barrels of limes; and there
was no appearance of the cargo having been broken in any part
of the vessel.
In the district court, the vessel and cargo were condemned,
and from this sentence of condemnation an appeal was taken to
this Court. -
MARSHALL, C. J.-Much of the testimony found in the record,
has been objected to, and to these objections, the first attention
of the Court has been directed. - -
The depositions of Lewis Gordon and John York, the per-
sons on whose information the seizure was made, were taken
de bene esse, and are offered as evidence. Two objections are
372 - VIRGINIA.
The Thomas & Henry. Fletcher & Parker, Claimants.
---
made to their being read : 1st. That it does not appear, that they
might not have been produced in the district court.
2d. That they are interested, and, therefore, incompetent
witnesses. * - -
According to the judicial act,(1) a deposition taken de bene
esse cannot be read at the trial, unless it appear to the court,
that the witness is dead, or has removed out of the United States,
or to a greater distance from the place of trial, than one hundred
miles, or that he is unable to attend the court. No one of these
requisites appear on the record to have been complied with.
But, it is said by the attorney for the United States, very cor-
rectly, that if a deposition be read without objection, all objec-
tions to it are understood to be waived, and if particular excep-
tions are taken, all others are waived. To these depositions, he
insists, a particular objection was made in the district court, which
is not valid. z -
The objection is, “ that the deposition was not taken and re-
turned according to law.” - -
I must understand this objection as being, that that deposition
is not taken and returned, according to law, as a deposition in
chief. It does not appear, that the attorney for the United
States, offered to prove those circumstances, which would en-
title him to read it, as a deposition taken de bene esse. This he
ought to have done, when the objection was taken to it, as a
deposition in chief. Although the attorney for the claimants
might have explained himself more fully, he was not bound so
(1) See the judicial act of 1789. Story's Laws of the U. S., vel. I. ch. 20.
§ 30. “And if an appeal be had, such testimony” (depositions taken de bene
esse, &c.) “may be used on the trial of the same, if it shall appear to the satis-
faction of the court, which shall try the appeal, that the witnesses are then dead,
or gone out of the United States, or to a greater distance than as aforesaid,”
(viz, one hundred miles,) “from the place where the court is sitting; or, that by
reason of age, sickness, bodily infirmity, or imprisonment, they are unable to
travel and appear at court; but not otherwise. And, unless the same shall be
made to appear on the trial of any cause, with respect to witnesses, whose depo-
sitions may have been taken therein, such depositions shall not be admitted, or
used in the cause.”—ſ Editor.]
NOVEMBER TERM, 1s1s. 373
{
The Thomas & Henry. Fletcher & Parker, claimants.
to do ; and the party offering the deposition, was bound to show,
that it was admissible. Even if this reasoning were incorrect,
the certificate of the magistrate is insufficient. That is, that the
deposition was taken, because the witness was a transient
person. - -
The deposition of John York was also objected to, because,
“it did not appear to have been duly taken, according to the act
of congress.”
This objection was overruled, because notice was given to the
persons in possession of the property.
This reason is certainly sufficient for overruling the objection,
if taken to it as a deposition de óene esse. But if offered, un-
accompanied by the evidence, which would justify its being read
as a deposition de bene esse, it must be supported as a deposition,
taken in chief, or it cannot be read.
I think it not improbable, that the objections on the part of
the claimant were understood to be made to the regularity of
the depositions, as taken de bene esse, and that the fact of the
witnesses having left the United States, or having removed to a
distance of more than one hundred miles from the place of trial,
was neither controverted, or controvertible. But I deem it
proper, in cases where depositions are taken under the act of
congress, that the requisition of the act should be observed, and
should appear to have been observed. •.
On the part of the United States, it is contended, that so far
as respects the deposition of York, these requisites are dispensed
with, by the appearance of the attorney of the claimants, under
an express declaration, that he waived all objections to the pro-
ceedings. - •.
But I understand this general waiver, as extending to the
deposition, in the character in which it was intended to be taken,
not as giving it a new character, not intended by the party taking
it. It was not taken under a commission, issued by the eourt,
and is, consequently, taken de bene esse. The waiver of all
objection to the proceeding, therefore, is a waiver of objection
to the deposition, as one de bene esse, and cannot be under-
stood to make it a deposition in chief.
374 - VIRGINIA.
The Thomas & Henry. Fletcher & Parker, Claimants.
The objection to the competency of these witnesses, is also
entitled to serious eonsideration. The law certainly is, that the
witness must be competent, when his testimony is given, and if
he be not then competent, his testimony is inadmissible. If
these witnesses were competent, it must be, because the very
act of giving their depositions amounted to a release of their
interest. Is this so P Had the depositions not been offered at
the trial, but been shown to defeat a claim to their share of the
forfeiture, would the attempt have succeeded ? Had the depo-
sitions been rejected for any cause whatever, could they have
extinguished the rights of the informers ? I am not prepared to
answer these questions in the affirmative. *
The language of the law would seem to justify these doubts.(2)
If any person, entitled to a share of the forfeiture, “shall be
necessary as a witness on the trial,” says the act, “such person
may be a witness upon the said trial,” &c. Who is to judge of
this necessity ? Certainly not the collector. It is not for him
to oust the informer for his own benefit. Then the Court must
judge of this necessity, and must judge of it, after hearing the
other testimony. Such person “may be a witness on the trial.”
This language, I think, is not applicable to a deposition, taken
before the trial. Gordon and York were not witnesses at the
trial. They were witnesses before the trial, at the time when
these depositions were taken by a magistrate. The act of con-
gress does not speak of depositions, and it seems to me, that
such persons can be rendered competent to give depositions, only
by releasing their interest.
On both grounds, therefore, I think these depositions inad-
(2) “If any officer, or other person, entitled to a part or share of any of the
fines, penalties, or forfeitures, incurred in virtue of this act, shall be necessary
as a witness, on the trial, for such fine, penalty, or forfeiture, such officer, or
other person, may be a witness upon the said trial ; but in such case he shall
not receive, &c., any part or share of the said fine, &c., and the part, or share,
to which he otherwise would have been entitled, shall revert to the United States.”
Act of 1799, ch. 128. § 91. Story's Laws of the United States, vol. 1. p. 656.
—[Editor.] '.
NOVEMBER TERM, 181s. 375
The Thomas & Henry. Fletcher & Parker, Claimants.
missible. Indeed their testimony was either rejected or dis-
regarded in the district court. ſ
The direct testimony of the informers being discarded, the
case turns on the other proofs in the cause.
The act under which this seizure was made, declares that “ in
actions, suits, or informations to be brought, where any seizure
shall be made pursuant to this act, if the property be claimed by
any person, in every such case the onus proband; shall be upon
such claimant.” [See Story’s ‘Laws of U. S., vol. 1, ch. 128,
§ 71, p. 633.] * +.
In this case, then, the United States are not required to estab-
lish guilt, but the claimants must prove innocence.
It is not the duty of the judge to justify the legislature, but
surely, if, in any case, such a legislative provision be proper, it is
in this. The fact is generally premeditated, and is perpetrated
under all the precautions and in all the secrecy which ingenuity
can suggest, and the means of proving innocence, at least, to a
reasonable extent, which is all that can be required, are in pos-
session of the accused. In such a case, he may, without a vio-
lation of principle, be required to prove his innocence.
In such a case, the absence of testimony, clearly in the power
of the claimants, if not supplied by other equivalent testimony,
must be fatal. It is impossible to smuggle so large a part of a
cargo, as is charged to have been smuggled in this case, without
the knowledge of the master and crew. Consequently, their
testimony against the fact, if believed, would be nearly conclusive.
Why is it not produced 2 The master, being himself liable to
a fine under one of the charges in this libel, was perhaps not
admissible as a witness; but to the crew, no objection existed.
Why were they not examined 2 If they were unattainable,
this fact ought to have been shown, and might have excused
their non-production. The deposition of one of them only was
offered, and his was taken so irregularly, as to be rejected. No
attempt appears to have been made to take it again, or to take
the depositions of other mariners, - t
The documentary papers which usually accompany a cargo,and
376 - VIRGINIA,
The Thomas & Henry. Fletcher & Parker, Claimants.
wº-
show its amount, are not produced. There is no testimony to
prove, and no reason to believe, that the thirty-four puncheons of
rum, and twenty barrels of limes, mentioned in the paper called a
report and manifest, if we add the barrel of sugar, and of coffee
found on board, and not included in the paper, constituted a full
cargo for the vessel; nor is there any testimony, of any descrip-
tion, to show that she sailed with less than a full cargo.
To the absence of important testimony in the power of the
claimants, is to be added, the testimony on the part of the United
States. The mate of the revenue cutter found a lighter by the
side of the vessel, the use of which, it is fair to presume, was to
receive goods from her, although no permit had been granted.
I say none was granted, because none is produced : nor is any
circumstance proved, to create a presumption that one was
granted.
The arrangement of the cargo forms a strong presumption,
that a part of it had been taken out. A large vacancy was found
in the place which would have been filled in preference; and the
cargo, which did not appear to have been moved, was so dis-
posed, that the vessel could not have been navigated.
No evidence was offered to do away these causes of suspicion.
I do not term the claims evidence, although they are sworn to,
because the law does not allow to the affidavit made to them
the dignity of testimony. If they amount to any thing, it is to
no more, if I may use the phrase of Lord Coke, than “the ex-
clusion of a conclusion.” -
Such are the circumstances under which this case appeared in
the district court. The judge of that court was, I think very
properly, of opinion, that they do not establish the innocence of
the transaction. .
In this Court, the depositions of Robert Pitts, George P. Barnes,
and Wm. Pitts, are offered.
To the reading of these depositions, the attorney for the
United States objects, because,
They are taken de bene esse, and it does not appear, that the
two Pitts have gone out of the United States, or to a greater
distance from this place than one hundred miles.
NOVEMBER TERM, 1818. 377
The Thomas & Henry. Fletcher & Parker, Claimants.
~~~~3–
This objection is, undoubtedly, conclusive ; but as I have
no doubt of the fact, I should allow the counsel for the claimants
now to prove it, if these depositions would alter the case, I
shall, therefore, consider them as if they were admitted. They
are intended to meet the testimony of Butler, the officer of the
revenue cutter, and to disprove the strong circumstances stated
by him. - -
Before examining the testimony particularly, I will notice
some general circumstances attending it, which seem to me to
be worthy of observation. .* -
The testimony of Butler was in the cause, long before it was
tried. Why was not this explanatory or conflicting evidence
offered in the district court It must have been within the
knowledge of the claimants; why was it not taken why have
they now taken it ear-parte 2 If it be true that the law author-
izes this proceeding, it is not less true, that testimony, acquired
under such circumstances, ought to be critically examined, and
not carried beyond the plain meaning of the words of the
witness ; that material omissions justify the conclusion, that the
facts omitted to be noticed, could not be noticed satisfactorily.
' With these observations, I shall examine these depositions.
Robert Pitts states, that he was on board of the vessel when
she was seized; that they had to move the hogsheads out of the
hatchway to get at the cargo, and there was no appearance of
any thing having been moved when he went on board. -
He does not say how many hogsheads were removed. Two
hogsheads were on the deck and one on the slings, according to
the testimony of Butler, who also says, that appearances
indicated the recent removal of three hogsheads. When the
witness says, there was no appearance of any having been
moved, he states his own conclusion, which may have been
drawn from the appearance of the hogsheads he saw. He does
not say, that there was not a large vacancy in the centre of the
vessel, nor that the disposition of the cargo was compatible with
the navigation of the vessel. - -
George P. Barnes has, at least, sworn carelessly in saying, that
VoI. I.—3 B f
378 r VIRGINIA.
The Thomas & Henry. Fletcher & Parker, Claimants.
he went on board the vessel immediately on her arrival. He
says, he did not discover any particular deficiency of cargo
midships of said schooner, nor that there appeared to be any
particular breakage of the cargo in the midships.
This testimony is entirely negative, and instead of stating
facts from which his conclusions are drawn, states the conclusion
of the witness. He does not say that the midships were full; that
the large vacancy, described by Butler, did not exist. He does not
say that the hogsheads were there; but that no particular break-
age of the cargo appeared. He may not have considered this
vacancy, iſ he observed it, as evidence of the breakage of the cargo;
and if he did not so consider it, the vacancy may have made no
impression on him. - - -
William Pitts says, that the floor of the schooner, from main
to foremast, was covered, when she was seized, with hogsheads
of rum and barrels of limes, and that there was no appearance of
the cargo having been broken in any part. -
This testimony is certainly more explicit than any other.
Had it been taken in the district court, or were any satisfactory
reasons assigned for its not having been taken ; or had an
opportunity been given to cross-examine the witness, I will not
say, that his testimony would have outweighed the conflicting
and more explicit testimony of Butler ; but I will say, that it
would have had much more influence on my mind than it
now has. i.
I come now to consider the second charge in the libel, the
omission to make the report required by law.
The claimants, contend that the allegation of this offence in
the libel, is too defective to sustain a sentence of condemnation,
whatever the testimony may be.
My opinion on this point depends on the construction of the
act of congress. If, by that act, the rum is forfeited for the
omission of any thing required, although the report may be
perfect so far as respects the rum, then I rather think the libel
is not so totally insufficient as to be incapable of sustaining the
sentence. It alleges, in substance, that such a report as is re-
quired by the act, was not made.
NOVEMBER TERM, 181s. 379
ºrrºr-s- *
The Thomas & Henry. Fletcher & Parker, Claimants.
But if the forfeiture of the rum depends on some omission
respecting that article, then I presume the attorney for the
United States, would not hazard an argument in support of this
count in the libel. [Act of 1799, ch. 128, § 30.]
On the best consideration I can give to this section of the act
of congress, I am of opinion that the rum is not forfeited, unless
something respecting that article be omitted in the report. The
act requires that a certain report shall be made, and does not for-
feit the cargo, if the report be not made in the form prescribed,
but the rum which is omitted. If no rum be omitted, the article
to be forfeited, does not exist. Let us vary the phraseology and
read it thus, “on pain of five hundred dollars, and the article so
omitted.” All, I presume, will admit, that only so much of the
cargo as was omitted, would be forfeited, and that it would be
indispensable to the validity of the libel, that it should specify the
omitted article. When, instead of saying that the omitted article
shall be forfeited, the law says that the omitted rum shall be for-
feited, I construe the law as equally requiring, to produce the for-
feiture, that rum should be omitted, and consequently that the
omission should be charged in the libel.
The following decree was rendered, reversing in part the
sentence of the district court, and giving the attorney for the
United States leave to amend his libel. -
This cause came on to be heard on the transcript of the record
of the district court, and on the depositions taken in this Court,
and was argued by counsel. On consideration whereof, this Court
is of opinion, that there is error in so much of the sentence of
the district court, as condemns the foreign distilled spirits therein
mentioned, it being the opinion of this Court, that the libel is
insufficient to sustain that part of the sentence : it is, therefore,
the opinion of this Court, that so much of the sentence of the
district court as condemns the foreign distilled spirits on
board the Thomas and Henry, be reversed and annulled. And
on the motion of the attorney for the United States, leave is
given him to amend his libel, and the cause is retained for fur-
ther proceedings. -
*
circuit court of the Qinited states.
º
viRGINIA, NovKMBER TERM, 1819.
BEFort E
Hos. JoHN MARSHALL, Chief Justice of the United states.
THE UNITED STATEs v. THE Schoon ER LITTLE CHARLEs.
An order, made by a district judge of the United States, for the release of a vessel
libelled for a breach of the embargo laws, is as valid, if made by the judge, at
his chambers, as if it were made in open court. -
Where the condition of a bond is, that the parties will perform the decree of the
court, the term “the court,” means, the court which shall ultimately decide the
CællSee . . - - -
The admiralty courts of the United States may proceed, under their general
powers, in every case in which they are not restrained from the exercise of those
powers by statute. -
A defendant will not be permitted to avail himself of an irregularity to which he is
himself a party.
SEE the proceedings against the Little Charles, ante.
This Court, at the May term, 1818, having reversed the de-
cree of the district court, dismissing the libel against the Little
NovembHR TERM, 1slo. 8s.
*===º “
The United States v. The Schooner Little Charles.
Charles, and rendered a decree of forfeiture against the vessel, a
monition, issued against Charles Grice, owner, and Warren Ash-
ley, requiring them to appear at the next term thereafter, and
show cause why a decree should not be rendered against them, for
the sum of money expressed in the obligation. The bond was exe-
cuted by these parties, pending the proceedings in the district
court, for the appraised value of the vessel, and one hundred dol-
lars in addition thereto, according to law, conditioned to perform
the decree of the court. Upon the execution of this bond, the
marshal released her under an order of the district judge.
Warren Ashley appeared at this term of the court, and the
attorney for the United States moved for an execution against
him. This motion was opposed by Ashley, upon the grounds
stated in the following opinion.
MARSHALL, C. J.-This is a motion for an execution against
Warren Ashley, who signed a bond with Charles Grice, the owner
of the Little Charles, then libelled for a breach of the embargo
laws, on receiving which the vessel was restored to the owner.
In the district court, the vessel was acquitted ; that sentence was,
on appeal, reversed, and the vessel was condemned by the sen-
tence of this Court. On the return of the monition, which has been
issued to the party who signed the bond, Mr. Ashley contends
that the proceedings in the case have been so singular, informal,
and defective, that no execution can be issued on the bond against
him. The objections are, A *
1. That the order for release, is a nullity, and all the consequent
proceedings void, because the order was made by the judge, at
his chambers, and not in court. : -
The judicial act appoints certain stated terms of the district
court, and gives the judge power to hold special courts at his
discretion, either at the place appointed by law, “ or at such
other place in the district, as the nature of the business, and his
discretion shall direct.” No power, it is contended, is given to
the judge, except when sitting as a court, and, therefore, the form
382 . VIRGINIA.
The United States v. The Schooner Little Charles.
of declaring himself to be a court, is indispensable to the validity
of his acts.
This objection seems rather technical than substantial. By
law, the district judge alone composes the court. He is a court
wherever, and whenever he pleases. No notice to parties is re-
quired; no previous order is necessary. The various ea-parte
orders which admiralty proceedings require, renders this infor-
mal mode of acting essential to justice and expedition. The judge
will take care that neither party be injured by the orders which
he makes ea-parte, and where they are of course, it is convenient
that they should be made without the formality of summoning the
parties to attend. It does not seem to be a violent construction
of such an act, to consider the judge as constituting a court when-
ever he proceeds on judicial business. Such seems to have been
the practice in this, and in other districts of the United States.
Had the judge prefixed to his order such words as these, “At a
special court, held at on this day of it is ordered,
&c.,” the proceedings would have been regular, for the law does
not, in terms at least, require that the order for a special court
should be made in court, or made any given time previous to its
session. To every purpose of justice, the order of the judge,
made in his character as a judge, is made by him as a court,
whether he declares himself, in words, to be a court, or not.
This order is, in its nature, judicial. It is such an order as may
be made ea-parte ; it is signed by the judge, in his official cha-
racter, and is directed to the officer of the court. Under such
circumstances, I cannot overturn a practice which is convenient,
which is not liable to abuse, on a mere technical objection.
2dly. The second objection is, that the condition of the bond
has not been broken. It is to perform the decree of the court,
which must mean the district court; and by that decree, the
libel was dismissed. - --
This objection, too, must search for other support than is fur-
nished by the merits of the cause. The bond was intended to be
substituted for the vessel, and to be acted upon as the vessel
would have been acted upon, had it remained in the power of
NOVEMBER TERM, 1819. 383
The United States v. The Schooner Little Charles.
the court. I think myself justified, then, by authority and by
reason, in construing the general term, “the court,” which is
used in the condition, as meaning the court which shall ulti-
mately decide the cause. **
3dly. An objection which I felt most difficulty in removing,
was, that the bond was executed to the marshal, and that the
valuation ought to have been made by commissioners appointed
by the court. -
I believe there is no special act of congress prescribing the
form of the bond, or the mode of valuing the property. The
act for regulating process in the courts of the United States,
directs, that in causes in equity, and in those of admiralty and
maritime jurisdiction, the proceedings shall be “according to
the principles, rules, and usages, which belong to courts of
equity and courts of admiralty, respectively, as contra-distin-
guished from courts of common law. - - -
The courts of the United States have never doubted their
right to proceed under their general powers, as courts of admi-
ralty, where they were not restrained from the use of those
powers by statute.
It may be, that the proceedings in this case have not con-
formed strictly to the usages of admiralty. But I do not think
the defendant can be permitted to avail himself of an irregula-
rity to which he is himself a party, and which could only affect
the libellants. -
The bond is executed voluntarily to the marshal, for the pur-
pose of being substituted for the vessel, and with full knowledge
of the valuation. The libellants might have objected, that the
valuation was informal and insufficient. But they have not
objected. The stipulation, as it is, was filed in court, and has
remained there in place of the vessel. I do not think, that
those who, with full knowledge, have made this stipulation,
have placed it in the stead of the vessel, and thereby obtained
restitution thereof, can be permitted to allege any unimportant
informality in their own act. -
The execution is to be awarded.
384 VIRGINIA.
THE CASE of THE BRIG CAROLINE.
Before Hos. JoHN MARSHALL, Chief Justice of the United states.
An act of congress declares, that “no person shall build, fit, equip, load, or
otherwise prepare, any ship or vessel, &c., within any port of the U. S., nor
shall cause any ship, or vessel, to sail from any port of the U. S., for the pur-
pose of carrying on any trade, or traffic in slaves, to any foreign country,”
and it declares, that “if any ship or vessel, shall be so fitted out, as aforesaid,
or shall be caused to sail, as aforesaid, such ship or vessel, &c., shall be for-
feited to the U. S.” And the second section, inflicts a penalty of $2000, on
any person who shall build, fit out, &c. &c., any such ship or vessel, knowing,
or intending that the same shall be so employed. Held: 1st. That the forfei-
ture of the vessel is not incurred by the building of the vessel for the illegal
purpose aforesaid, but only for the fitting out, or causing her to sail as afore-
said. 2d. An information against the vessel, which charges, “that she was
built, fitted, equipt, loaded, or otherwise prepared, &c., on caused to sail,”
&c., is bad for the uncertainty, as to which of the several offences is charged;
and on such information, a sentence of forfeiture ought not to be pronounced.
WRIT of error to the sentence of the district court of the
|United States, at Norfolk.
An information was filed in the district court, charging the
brig Caroline, with violating the acts of congress, made for the
suppression of the slave trade. A sentence of forfeiture was
pronounced in the district court, and on a writ of error to the
circuit court, the following opinion, reversing the sentence of
the district court, was pronounced by
MARSHALL, C. J.-The Caroline was seized, as being for-
feited to the United States, for being concerned in the slave
trade, in violation of the acts of 1794, and 1807, or of one of
them.(1) -
The peculiar odium attached to the traffic, in which this vessel
is alleged to have engaged, ought not to affect the legal questions
which belong to the case.
(1) I Story’s Laws U. S., p. 319, and 2 Story’s Laws U. S., 1050,-[Editor.]
NOVEMBER TERM, 1819. 385
The Case of the Brig Caroline.
The information charges, that the Caroline, “after the 22d day
of March, 1794, was built, fitted, equipped, loaded, or other-
wise prepared, within a port or place of the said United States,
by a citizen, &c., for the purpose of carrying on trade, or traffic
in slaves, to a foreign country,” &c. -
There are other counts in the information ; but as the obser-
vations made on this, apply to them also, it is deemed unneces-
sary to recite them. -
The charge contained in this information, is understood to be,
that the Caroline was either built, fitted, equipped, loaded, or
otherwise prepared, within a port or place of the United States,
or that she was caused to sail from a port or place of the United
States. It is not alleged, that all these acts were performed,
but that some one of them, it is uncertain which, was performed.
This information will be strictly and literally true, if the Caro-
line was either built, fitted, equipped, loaded, or otherwise pre-
pared, within a port or place of the United States. -
In such a case, it is deemed essential to the validity of the
judgment, that it should be such as the law will authorize the
court to render, on proof of any one of the acts charged in the
information. If any one of two or more acts be innocent, and
the information charges that one or the other of them has been
committed, it would violate the clearest principles of law, to
pronounce judgment against the accused. If the law should
inflict forfeiture on a vessel which should sail out of port on a
certain day, and an information should charge that a vessel did
sail on that day, or did not sail on it, all would concur in de-
claring that no sentence of forfeiture could be pronounced
against such a vessel. So, if several acts be prohibited under
several penalties, and on one of them, the penalty of forfeiture
be inflicted, the information must charge, in explicit terms,
that the particular crime to which the law has annexed forfeiture
as a penalty, has been committed, or the court cannot adjudge
the thing to be forfeited. If, for example, it be forbidden by
statute to build, or fit, a vessel for the slave trade, and to building,
or fitting, be annexed, a penalty of $2000, but to fitting, be super-
VoI. I.-3 C - *
3S6 - VIRGINIA.
:-----1-4
The Case of the Brig Caroline.
added a forfeiture of the vessel, the information must charge a
“fitting” of the vessel, or the court cannot adjudge her to be
forfeited. . . - -
These positions seem to me to be incontestible. If this be
correct, it only remains to inquire whether the statute inflicts for-
feiture on each of the offences charged in the information.
The act declares that no person “shall build, fit, equip, load,
or otherwise prepare any ship or vessel within any port or place
of the United States, nor shall cause any ship or vessel to sail
from any port or place within the same, for the purpose of carry-
ing on any trade or traffic in slaves to any foreign country.”
It is perfectly clear that each of these acts is prohibited ; but
it is equally clear, that if the law had proceeded no farther, the
vessel would not have been forfeitable for either of them. To
the legislature it belongs, to define punishment as well as crime,
and courts would certainly step very far beyond their province,
were they to annex forfeiture to offences, to which the legislature
had not annexed that penalty. In order to determine whether
all, or any of the offences enumerated in the part of the act,
which has been recited, be cause of forfeiture, it will be neces-
sary to examine that part of the law which prescribes the pun-
ishment. - -
The law proceeds to say, “and if any ship or vessel shall be
fitted out, as aforesaid, or shall be caused to sail, as aforesaid,
every such ship or vessel, her tackle, furniture, apparel, and
other appurtenances, shall be forfeited to the United States.”
The penalty of forfeiture is here annexed only to the act of
“fitting out as aforesaid,” that is, for traffic in slaves; or to the
act of sailing, for the purpose of engaging in that traffic.
It is unusual for a legislative act, when it has enumerated
certain offences, to vary the language by changing the enumera-
tion, when penalties are to be annexed to those offences, if the
intention be to punish them all in the same manner. -
When a form of expression is used, applicable to the enume-
ration of several distinct offences, and a penalty is afterwards
inflicted on one or more of them, leaving others out of the
NovemEER TERM, 1819. 387
The Case of the Brig Caroline.
recital, the mind is drawn to the conclusion, that, in the opinion
of the legislature at least, the offences are distinct, and the
punishment is to be different. In legislative acts, we are not
accustomed to such a parsimony of words as to expect, where
several offences are enumerated, that the legislature, if it means
to punish them all in the same manner, will drop several of
them in that part of the sentence which recites the offences to
be punished, merely to avoid that expenditure of words which
would be incurred by repeating the enumeration. If, then, the
offences were not materially variant, it would seem to be a fair
construction of such an act, to presume that the legislature sup-
posed some distinction to exist between them.
But in this case, the offences are totally different from each
other. To build a vessel, and to fit out a vessel, are two distinct
acts, as clearly separable from each other as any acts whatever.
The terms are applied to distinct and different operations. To
build a vessel, is to construct her; to fit her out, is to prepare
her for sea after she has been constructed. They are no more
the same act, than to build a house, and to furnish a house, are
the same. -
I cannot admit, that the legislature ought to be considered as
having omitted the word “built,” in that part of the act which
enumerates the offences which are cause of forfeiture, from an
idea, that the word “fitted out” could apply, in this place, to a
vessel “built,” but not “fitted out.” In addition to the well-
established meaning of the words, the clause inflicting forfeiture
does itself show, that in using the term “fitted out,” the legis-
lature had in contemplation, a vessel equipped for her voyage.
The words are, “such ship or other vessel, her tackle, furniture,
apparel, and other appurtenances, shall be forfeited to the United
States.” This is obviously the state of a vessel actually fitted
out, but a ship may be built without “tackle, furniture, apparel,
and other appurtenances.” .
The second section inflicts a penalty of $2000 on any person
who shall build, fit out, equip, load, or otherwise prepare, or send
away, any ship or vessel, knowing, or intending, that the same
388 VIRGINIA.
The Case of the Brig Caroline.
shall be employed in the trade, or business, prohibited by
the act. - ... •
On an information against the builder of a ship, not concerned
in fitting her out, would it be a defenee to say, that the legislature
used the word “building” in the same sense with the words
“fitting out?” and as he had not “fitted out,” so he had not built,
in the sense in which that term is used in the law. I cannot be
mistaken, when I say, that no gentleman of the bar would hazard
such a defence. And yet I cannot perceive the difference be-
tween saying, that under the second section, no ship can be con-
sidered as built, unless she be fitted out, and saying, that under
the third section, the words “built” and “fitted out” have the
same meaning. * -
The plain sense of the law appears to me to be this. In the
first section, various offences are enumerated, to two of which,
“fitting out,” and “ sailing,” forfeiture is annexed. In the second
section, the penalty of $2000 is inflicted on any person, who,
Knowingly, commits any one of these offences. As this infor-
mation charges that one of several offences has been committed,
and they are not, in law, each of them cause of forfeiture, I should,
so far as I can trust my own judgment, be of opinion, that a sen-
tence of forfeiture ought not to have been pronounced.(2)
Sentence of the district court reversed.
(2) Quere, Would this information have been good, if the section of the act of
congress, commented on above, instead of annexing the penalty of forfeiture to two
only of the offences enumerated in it, had subjected each of them to the same penalty!
The offences prohibited by the act are, the building, fitting, equipping, loading,
or otherwise preparing any ship, &c., on causing any ship to sail, &c.; and the
information, adopting the phraseology of the law, charged that the brig Caroline
“was built, fitted, equipped, loaded, or otherwise prepared, &c.” As the act in
question is of a highly penal character, it is apprehended that the rules of criminal
pleading, in all their strictness, are applicable to proceedings under it: except where
those rules are founded on mere “technical niceties,” “unimportant in them-
selves,” “standing only on precedents, of which the reason cannot be discerned.”
[See ante, 350.] Those rules require, that where two or more offences are enume-
rated in a statute, to the commission of which, or of either of them, any given pe-
malty is annexed, an indictment, or information founded upon the statute, if it
NOVEMBER TERM, 1819. 889
PRENTIss, Trustee of PRENTTss v. BARTON’s ExECUTORs.
Before HoN. JOHN MARSHALL, Chief Justice of the United States.
Question of jurisdiction. What constitutes citizenship in another state, in the
sense of the Constitution and judicial act, with reference to the jurisdiction
of the Federal Courts.
THE original bill in this case was filed by the plaintiff, Chris-
topher Prentiss, trustee of William Prentiss, alleging himself to
be a citizen of Maryland, in November 1806, and the answer of
the defendant, a citizen of Virginia, in June 1808. In the pro-
gress of the suit, Seth Barton, the defendant, died, and the suit
was revived against his executors. In December 1816, the
executors filed an amended answer, in which the question of
jurisdiction is raised. They deny that the plaintiff was then,
or at the time of suing out the original writ, or at the times of
exhibiting the original or amended bills, a citizen of Mary-
land, but insisted that he was and had so continued from the
institution of the suit, a citizen, either of the District of Co-
lumbia, or the state of Virginia, and called for strict proof
of his citizenship. To this plea to the jurisdiction, the plaintiff
charges more than one of those offences, must charge them conjunctively, though
the law itself, in its enumeration, may have connected them by the alternative
conjunction, or ; and although, in point of fact, proof of any one of them will sup-
port an indictment or information. Thus, the Virginia statute against unlawful
shooting, &c., affixes a penalty, when the act is done with intent to maim, dis-
figure, disable, on kill, yet the indictment must charge the intents conjunctively;
but though all the intents be laid in the indictment, proof of any one supports the
indictment. Angel v. The Commonwealth, 2 Virginia Cases, 231; see, also,
1 Chitty's Crim. Law, 236. The English statute punishes “forging, on causing
to be forged.” The indictments must say, “forged, and caused, &c.” Renwick
Williams’ case, I Leach, 529. So the statute says, “cut or deface;” but the in-
dictment must charge them conjunctively. Black Act, Crown, Circ. Comp. 82.
“Black, or otherwise disguise;” “forge, or counterfeit;” “acquittance, or receipt;”
Indictment and 2 East, 923, 934. So in indictments under the Coventry Act,
3 Chitty's Crim. Law, 787; 1 East's Crown Law, 402; I Leach, 55–LEditor.]
390 VIRGINIA.
Prentiss, Trustee v. Barton’s Executors.
replied generally. The state of facts to show or disprove the
residence of the plaintiff in the state of Virginia, or District of
Columbia, as developed by the depositions exhibited on the
trial of the issue, together with the legal inferences from those
facts, are presented and commented on in the following opinion.
MARSHALL, C. J.-The jurisdiction of the Court in this case
depends on the citizenship of the plaintiff. If he was a citizen
of the District of Columbia,(1) or of the commonwealth of Vir-
ginia, this suit cannot be maintained ; if he was a citizen of any
other state, he may sue in this Court. .
Before I proceed to examine the facts in this case, I will con-
sider the principle which must govern it. º
The Constitution of the United States gives the courts of the
Union jurisdiction over controversies arising “between citizens
of different states,” [Art. III. Sect. II. I.] and the judicial act
gives this Court jurisdiction, “where the suit is between a citi- -
zen of the state where the suit is brought, and a citizen of
another state.” -
The Constitution, as well as the law, clearly contemplates a
(1) Hepburn & Dundas v. Ellzey, 2 Cranch, 445; 1 Con. Rep. Sup. Ct. U. S.
444; Westcott's Lessee v. The Inhabitants of Fairfield Township, Peters’s Circuit
Court Reports, 45. In the case first cited, Hepburn and Dundas, citizens and resi-
dents of the District of Columbia, (and so averring themselves in the pleadings,)
brought suit against Ellzey, a citizen of Virginia, who was averred to be such in
the pleadings, in the circuit court of the United States, from the district of Virginia,
and the court, being divided in opinion on the question of jurisdiction, certified
that question to the supreme court. Held: That although the District of Co-
lumbia was a distinct political community, and constituted “a state” according to
the definitions of writers on general law, yet that the act of congress, giving to
the circuit courts, jurisdiction in cases between a citizen of the state in which the
suit is brought, and a citizen of another state, used the term state in reference to
that term, as used in the Constitution; and that the term state, in the sense of the
Constitution, applied only to the members of the American confederacy. Suit
dismissed for want of jurisdiction. Neither can the United States’ courts entertain
jurisdiction of a case, between a citizen of a territory and a state. The corpo-
ration of New Orleans v. Winter et al. I Wheat. 91; 3 Con. Rep. Sup. Ct.
U.S. 499,-(Editor.] . . - -
NOVEMBER TERM, 1s19. 391
Prentiss, Trustee v. Barton’s Executors.
distinction between citizens of different states; and although the
4th article declares, that “ the citizens of each state, shall be
entitled to all privileges, and immunities of citizens in the several
states,” yet they cannot be, in the sense of the judicial article,
or of the judicial, act, citizens of the several states. There is
still a distinction between them, if in no other respect, in their
right to sue in the courts of the Union. This distinction
although it may be clear enough in theory, cannot always be
easily drawn in fact. In a government, composed like ours, of
distinct governments, and containing the principle which has
been stated, it cannot depend entirely on birth. A citizen living
in a state, with all the privileges and immunities of a citizen of
that state, ought to share its burthens also, and will be considered,
to every purpose, as a citizen. Accordingly, the universal under-
standing and practice of America is, that a citizen of the United
States, residing permanently in any state, is a citizen of that state.
Otherwise, a citizen by statute could never belong to any state,
and could never maintain a suit in the courts of the United States.
In the sense of the Constitution and of the judicial act, he who
is incorporated into the body of the state, by permanent residence
therein, so as to become a member of it, must be a citizen of
that state, although born in another. Or, to use the phrase more
familiar in the books, a citizen of the United States must be a
citizen of that state, in which his domicil is placed. What is
permanent residence This question must, in some cases,
depend on a great variety of considerations; and as in all mixed
and doubtful questions of fact, each circumstance must be allowed
its due weight. Birth alone, undoubtedly, gives a man perma-
nent rights as a citizen ; and although those rights, so far as
respects suits in the courts of the United States, may be changed
by a change of residence, yet, in doubtful cases, birth will always
have great influence. -
This question has never come directly, so far as I can discover,
before the supreme court of the United States. The cases rather
prove, that the jurisdiction of the court must be shown, than
determine what constitutes citizenship. -
392 VIRGINIA.
Prentiss, Trustee v. Barton’s Executors.
The first is that of Bingham v. Cabot et al., [3 Dallas, 382,]
which was decided in 1798. The declaration was in the name
of John Cabot of Beverly, in the district of Massachusetts, mer-
chant, and in the name of other plaintiffs, described in the same
manner. The court were clearly of opinion, that it was neces-
sary to set forth the citizenship, or alienage of the respective
parties, in order to bring the case within the jurisdiction of the
circuit court. -
In the argument, the attorney-general observed, “a citizen of
one state, may reside for a term of years, in another state, of
which he is not a citizen, for citizenship is clearly not co-exten-
sive with inhabitancy.” - - - -
Mr. Dexter, in support of the jurisdiction, contended, that
citizenship in a particular state, may be changed without going
through the forms and solemnities, required in case of an alien;
that, on the principles of the Constitution, a citizen of the United
States is to be considered, more particularly as a citizen of that
state, in which he has his family, is a permanent inhabitant, and
is, in short, domiciliated. -- -
This question came on again, in 1803, in the case of Aber-
crombie v. Dupuis & Another. [I Cranch, 343.] The suit was
brought in the district of Georgia, and the plaintiffs, averred,
“ that they do severally reside without the limits of the district
of Georgia, aforesaid, viz.: in the state of Kentucky, therefore,
they have a right to commence their said action,” &c. The
judgment was reversed on the authority of the case of Bing-
ham v. Cabot et al. - - -
The question came on again, in 1804, in the case of Wood v.
Wagnon, [2 Cranch, 9, also from the district of Georgia. The
declaration in that case, stated the plaintiff to be a citizen of
Pennsylvania, and the defendant to be “ of Georgia.” The
judgment in this case was also reversed. -
These cases all show, that the jurisdiction of the court must
appear on the record ; but the last shows, that jurisdiction is not
given, by averring a party to be of a particular state. The plain-
tiff was a citizen of Pennsylvania, and had, consequently, a
NOVEMBER TERM, 1819. 393
Prentiss, Trustee v. Barton’s Executors.
right to sue either an alien or a citizen of Georgia, in the circuit
court of Georgia. The defendant must have been, either an
alien, or a citizen. If an alien, the court had jurisdiction. The
judgment, then, must have been reversed, because the defendant
might be “ of Georgia,” and yet a citizen of another state.
This, certainly, does not prove what residence will constitute
domicil, or citizenship ; but I think it does prove, that it is not
constituted by every residence.
By the general laws of the civilized world, the domicil of the
parents at the time of birth, or what is termed the domicil of
origin, constitutes the domicil of an infant, and continues, until
abandoned, or until the acquisition of a new domicil, in a dif-
ferent place. As it gives political rights, which are not lost by
a mere change of domicil, it is recovered by any manifestation
of a disposition to resume the native character; perhaps, by a
surrender of a new domicil. In fact, it may be considered rather
as suspended, than annihilated. -
All agree, that a new residence is not acquired, by a residence
for temporary purposes. It must be a permanent residence.
Vattel defines it to be, “a habitation, fixed in any place, with
an intention of always staying there.”(2) The existence of this
intention, must be manifested by overt acts, in explanation of
which, if doubtful, the declarations of the party will, undoubt-
edly, be received. i
Let this rule be applied to the case at bar. Christopher Pren-
tiss was born in Massachusetts, of which state his parents were
citizens, and there he received his education, and married a wife.
(2) “The domicil is the habitation fixed in any place, with an intention of
always staying there. A man does not, then, establish his domicil in any place,
unless he makes sufficiently known his intention of fixing there, either tacitly,
or by an express declaration. However, this declaration is no reason why, if
he afterwards changes his mind, he may not remove his domicil elsewhere. In
this sense, he who stops, even for a long time, in a place, for the management
of his affairs, has only a simple habitation there, but has no domicil. Thus,
the envoy of a foreign prince, has not his domicil at the court where he resides.”
Wattel's Law of Vations, p. 169. § 218.-[Editor.]
VoI. I.-3 D
394 VIRGINIA.
Prentiss, Trustee v. Barton’s Executors.
He appears to have continued to reside in Massachusetts, until
the year 1801, when he came to Georgetown, in the District of
Columbia, and joined Mr. Rind, in editing a paper published in
that place. In 1802, he sold his interest in that paper to Mr.
Caldwell, and removed to Baltimore, with his family, where he
continued for some time, as the editor of a paper. In 1803, he
returned to Massachusetts, and leaving his wife with her father
went himself to England. After his return in 1804, he was
frequently in the District of Columbia, where he was employed
to take the debates of congress, for a printer in Philadelphia.
I think, there is not much difficulty in determining, that Mr.
Prentiss was not a citizen of the District of Columbia. If he
acquired a domicil in that place in 1801, he certainly abandoned
it in 1802, when he sold his property, and removed with his
family to Baltimore. Whatever might have been his character,
when residing in Baltimore with his family, he certainly reco-
vered his original domicil, when he returned with his family to
Massachusetts, and there is no ground to believe, that his after-
wards residing in the District of Columbia, for the purpose of
taking the debates, was an abandonment of it.
It remains to inquire, whether, at the emanation of this writ,
he was a citizen of Virginia P -
... It appears, that he came to Richmond, in March 1805, and
engaged, generally, with Mr. Davis, as the editor of his paper.
On the 18th of July, he returned to Massachusetts, where he
continued, until the latter end of September, when he came to
Virginia, and resumed his employment with Mr. Davis. About
the last of November, in the same year, he left Mr. Davis,
finally, and has since been, occasionally, in Massachusetts, where
his family resides, and, occasionally, in other states.
I cannot think this residence in Richmond, was “a habi-
tancy, with an intention of staying here always.” It continued
for only a few months, a considerable part of which was passed
in his native state, and his employment was one, which he could
abandon at any time. Had he acquired any property in the
paper, the case would have been more doubtful, or had he re-
NOVEMBER TERM, 1819. 395
Prentiss, Trustee v. Barton’s Executors.
mained in Richmond, till this time, or until this question occur-
red, his residence would have assumed the appearance of
permanence.
Plea to the jurisdiction overruled.(3)
(3) The Chief Justice, at the conclusion of the above opinion, referred to
the case of The JVereide, [9 Cranch, 388; 3 Con. Rep. Sup. Ct. U. S., 439.]
That case was decided at February Term, 1815, and the Chief Justice delivered
the opinion of the court. Among other points resolved in that case, it was de-
cided, that a merchant, being a native of, and having a fixed residence, in Buenos
Ayres, where he carried on business, did not acquire a foreign commercial cha-
racter, by occasional visits to a foreign country.
The case of Prentiss, &c. v. Barton’s Ex’or., above reported, strikingly resem-
bles the case of Cooper's Lessee v. Galbraith, 3 Wash. C. C. R. 546, decided
by Judge WASHINGTon, in 1819. That was an ejectment for land in the state
of Pennsylvania, and the defendant was a citizen of that state. Cooper, the
lessor of the plaintiff, was a naturalized citizen of Pennsylvania, and resided in
that state, until the year 1816. In September 1815, he resigned his professor-
ship of chemistry, in the college of Carlisle, with an intention, as he declared, of
removing to New Orleans, with a view of engaging in the practice of law.
About the same time, he broke up his family establishment, disposed of his fur-
niture, and remained with his family for some time, at the house of a friend, as
a visiter. He afterwards relinquished his intention of going to New Orleans,
and in the autumn of 1816, he removed with his family, to Camden in New
Jersey, (on the opposite side of the river to Philadelphia,) where he rented a
house for a year, and he continued to reside there, until November 1817. In
December 1816, he was appointed a professor in the college of Philadelphia,
where he delivered a course of lectures, coming over to Philádelphia, every morn-
ing for that purpose, and returning to his family in the afternoon in Camden. It
appears, from the report of the case, though that fact is not distinctly stated, that
the ejectment was brought after Cooper’s removal to New Jersey, and while he
was in the active and daily discharge of his duties of professor in the city of
Philadelphia. Judge WASHINGTon, in delivering his charge to the jury, said:
“The question of jurisdiction is first to be considered. It is composed of law
and fact; and as soon as the latter is ascertained, the question is relieved from
every difficulty. Citizenship, when spoken of in the Constitution, in reference
to the jurisdiction of the courts of the U. S., means nothing more than residence.
The citizens of each state, are entitled to all the privileges and immunities of citi-
zens in the several states; but to give jurisdiction to the courts of the U. S., the
suit must be between citizens residing in different states, or between a citizen an
an alien. If a citizen of one state, should think proper to change his domicil,
396 VIRGINIA.
SELDEN v. HENDRICKson & PRyor.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
A vessel belonging to the port of Richmond, in Virginia, may be hypothecated
in the port of New York, by the master, for necessary repairs, if the owner has
no agent in New York. But the money for which the bottomry bond is
given, must be advanced on the faith of the bottom, and must be necessary to
enable the vessel to prosecute her voyage.
APPEAL from the district court in admiralty.
The appellees, John Hendrickson and George Pryor, mer-
chants in the city of New York, filed their libel in the district
court of the United States, at Richmond, against the schooner
Richmond, her freight, tackle, and apparel, and Cary Selden,
the owner of the said vessel, living in the city of Richmond, to
recover the amount of a bottomry bond, executed by Joseph P.
and to remove himself and family, if he have one, into another state, with a
bona ſide intention of abandoning his former place of residence, and to become
an inhabitant, or resident of the state to which he removes, he becomes, imme-
diately, upon such removal, accompanied with such intention, a resident citizen
of that state, and may maintain an action in the circuit court (of the U. S.,) of
the state which he has abandoned, or in that of any other state, except the one
in which he has settled himself.” Having thus stated the principles of law,
which must govern the case, the judge told the jury, that they would decide,
whether, upon the evidence, the removal of the lessor of the plaintiff to New
Jersey, was bona fide, and with intention to become a resident and inhabitant of
that state.
In Rabaud et al. v. D’Wolf, 1 Paine, 580, it is said, that to deprive an Ame-
rican citizen of the right to sue in the circuit court of the U. S., on the ground
of his not being a citizen of any particular state, there ought to be very strong
evidence of his being a mere wanderer without a home.
A verdict cannot be excepted to, on the ground of the insufficiency of the evi-
dence to establish the citizenship of the plaintiff, as averred in the declaration,
because the question of such citizenship, constitutes no part of the issue upon
the merits, and must be brought forward by a proper plea in abatement, in an
earlier stage of the cause. D'Wolf v. Rabaud et al., 1 Peters, 498,-II'ditor.]
NOVEMBER TERM, 1819. 397
Selden v. Hendrickson & Pryor.
Colvin, master of the said schooner Richmond, of the port of
Richmond, in favour of the libellants. The bottomry bond was
dated on the 17th of February, 1816, and was for the sum of
$1300, and purported to have been executed in consideration of
advances made by Hendrickson & Pryor, for the purchase of
necessaries for fitting out the vessel for sea. The libellants
charged in their libel, that the advances thus made by them on
bottomry, were indispensable to enable the vessel to prosecute
her voyage. r
Cary Selden, in his answer, insisted, that Colvin had no right
to hypothecate the vessel in the port of New York, that not
being a foreign port in relation to the vessel, or to himself, as the
owner ; that the right of the master to hypothecate the vessel
under his command, in a foreign port, was a right resulting
from the necessity of the case, there being no opportunity in
such foreign port to make application to the owner for requisite
advances; but the reason of the principle had no application to
this case, since, through the medium of the mail, the respondent
was easily accessible to the application of the master. But if,
by the laws and principles of admiralty, the master of a vessel,
belonging to the port of Richmond, could hypothecate the vessel
for necessary repairs, &c., in the port of New York, the respon-
dent insisted, in the second place, that the amount alleged to
have been advanced, was unreasonable and enormous, and called
for full proof, that such advances were necessary, and were
applied for the use of the vessel, &c. t
The deposition of the attesting witness to the bottomry bond,
proved the execution and delivery of the instrument, and the
deposition of John H. Watson, a clerk in the store of Hendrick-
son & Pryor, stated, that all the articles charged in the account
exhibited, (amounting in the aggregate to the sum for which the
bond was given,) were delivered by Hendrickson & Pryor, to
Colvin, for the use of the schooner Richmond, and that they
were charged at the usual New York prices ; that at the time
they were furnished, the vessel was in the port of New York,
398 VIRGINIA.
Selden v. Hendrickson & Pryor.
and unseaworthy, having encountered a storm in her voyage to
New York, in which she lost her cables and anchors, and had
her quarter boards stove in, and sustained other material injury.
The district court rendered a decree in favour of the libel-
lants, for the whole balance due on the bottomry bond, with
interest at the rate of 7 per cent., (that being the rate of interest
allowed in the state of New York,) and their costs; and from
this decree the respondent, Selden, appealed to this Court.
At the November Term of this Court, 1819, the following
opinion was delivered by - -
MARSHALL, C. J.-This case arises on a bottomry bond, given
by the master of the schooner Richmond, to the appellee, for re-
pairs done on that vessel. The vessel belonged to the port of
Richmond, at which place the owner resided, and the repairs
were made, and the money advanced, in New York.
The question, whether the master of an American vessel may
hypothecate her for necessary repairs in a port of the United
States, is one of considerable importance to commerce, which has
never yet, I believe, been directly decided. In considering it,
the relative situation of the owner and master must be taken into
view. -
The owner remains generally on land, engaged in those occu-
pations to which his interest or his inclination may lead him.
The care and management of his vessel, while navigating the
ocean, is entrusted to the master. It is, generally, of much im-
portance that the voyage should be prosecuted, and that it should
be prosecuted without great delays. A ship, navigating the
ocean, is exposed to perils which frequently disable her from
prosecuting her voyage, without repairs, or necessary supplies.
When these circumstances are taken into consideration, and
when it is recollected that the master is appointed by the owner,
it would seem reasonable to expect that every power necessary
for the performance of the voyage, should be vested in him by
his appointment; and might be exercised, wherever the owner
NOVEMBER TERM, 1819. l 399
Selden v. Hendrickson & Pryor.
himself, or his known and authorized agent, could not be con-
sulted, without endangering or retarding the voyage.(1)
In conformity with this principle of reason, is the maritime
law of all nations. It is stated to be the law not only by Valin,
Emerigon, and other foreign writers, but is expressly laid down
to be the law of the admiralty, and the law of England, in
Bridgeman’s case, reported by Hobart, as admitted in the case of
Balsam, reported in Lord Raymond, as well as in several modern
cases, and is recognized by Parke, Marshall, Jacobson, Abbot,
Livermore, and other modern compilers. Upon this point there
is no doubt. In the absence of the owner, the master is in the
place of the owner, and is, by his appointment, impliedly clothed
with power to do all that is necessary for the success of the
voyage, and to bind the vessel, or the owner, or both, by his
engagements. The difficulty is, to decide in what situations the
absence of the owner is such, as to authorize the master to act
independently of his special orders. Must the vessel, if-belong--
ing to an American, be without the jurisdiction of the United
States ? Or is it enough, that she be without the jurisdiction in "
which the owner resides 2 , -
As the same motives exist everywhere for empowering the
master to act, in the absence of the owner, during the voyage,
the laws of the different nations of Europe, on this subject, re-
semble each other, very nearly ; and, indeed, on all maritime
questions, the decisions of one country have been very much re-
spected in the courts of every other. They originate in the same
source, and have preserved considerable uniformity. There is
scarcely any thing on the subject which is entitled to more re-
spect than the marine ordinance of Louis XIV. It was compiled
with great care, by the first civilians of the nation, and with a
view, as we are told, not only to all the ancient codes which are
extant, but also to the customs and laws of all the maritime states
of Europe. By that ordinance, the master is not allowed to hy-
pothecate the vessel “in the place where the owner resides,” and
(1) The Aurora, I Wheat. 96; 3 Con. Rep. S. C. U.S. 501,–LEditor.]
400 VIRGINIA.
Selden v. Hendrickson & Pryor.
these words are construed, in France, to comprehend the whole
district, but not the whole country. In his treatise on agencies,
Mr. Livermore says, “And upon the construction of these words,
le lieu de la demeure des proprietaires, the place of residence
of the owners, Emerigon observes, that the whole district, or
bailiwick, is to be considered the owner's place of residence, but
that, if the vessel puts into a neighbouring port, in another dis-
trict, this is not the owner’s place of residence. Therefore, where
the master of a vessel from Toulon, gave a bottomry bond at
Marseilles, it was determined that he had authority to do so.”(2)
Valin says, the master may hypothecate the ship while on her
voyage, and in a place where neither the owner, nor his corres-
pondents, reside.
This decision seems consonant to the principles of reason.
The power of the master to act, in the absence of the owner, is
a rule of convenience, founded on the necessity of the case. This
necessity depends, not merely on the vessel’s being within the
same jurisdiction with the owners, but on its being so near them,
that application may be made to them without material injury to
the voyage. In small territories, the whole country may, without
inconvenience, be considered as the place of residence of the
owners, but in large territories, as in Russia, the rule would often
be defeated by encumbering it with such a condition. In such.
countries, the power of the master must commence with the
voyage, or must commence after passing some line within the
limits of the empire, or the success of the voyage must be greatly
endangered.
In England the same principle has been adopted, but has been
so modified as to suit the situation of that country. The master
has the power to hypothecate the vessel, or to bind the owners
personally for repairs done abroad, but not at home. - This is
the general principle of English law, and is precisely the same
with that which is contained in the marine ordinance of Louis
XIV. When the vessel is abroad, and when at home, has been,
(2) I Livermore on Agency, ch. 5, sec. 4, p. 171.—[Editor.]
NOVEMBER TERM, 1819. 401
Selden v. Hendrickson & Pryor.
in England, as well as France, a question for construction. This
question has arisen in cases, where the repairs were actually made
beyond the seas, and, generally, in a foreign country ; and the
language used by the Court is adapted to the case. It has never
arisen, I believe, in a case where an English vessel was hypothe-
cated, by the master, in a distant port of England; and it has
never, I believe, been decided, that such hypothecation would
not be valid. Those writers, who lay down the English law,
understand the principle to be, but do not say expressly that it is,
that every port of England is to an English vessel, a home port.
That principle, however, is not expressly affirmed by any writer,
nor by any judge, so far as the cases have come under my in-
spection. Marshall, after stating the practise of allowing the
master to hypothecate the ship in a foreign country, says: “And
it is essential to the safety of the ship, and the success of the
voyage, that the master, in the absence of the owners, should
have this power, which is indeed, by the marine law, implied in
his appointment. But as the owners are presumed to give
entire authority to the master, only in their absence, and for such
affairs as they cannot themselves conveniently transact, he is not,
in fact, master, till after he sets sail. Till then, he is subject to
their orders, and they have the power of dismissing him at plea-
sure; till then, therefore, he can transact no business of import-
ance but under their immediate directions. Hence, if the master
borrows money on bottomry in the place where the owners reside,
without their express authority, it can only affect his own interest
on board.”(3)
Nothing in this passage, or in any other part of Marshall, so
far as I have examined him, would indicate, that the power of
the master, commences only when he leaves England, and can-
not be exercised, even in a port of England, other than the
home port of the vessel.
Mr. Abbot says: “It is obvious, that a loan of money upon
(3) 2 Marshall on Insurance, 740. Lavinia v. Barclay, 1 Wash. C. C. R. 40.
—[Editor.]
Vol. I–3 F.
402 VIRGINIA.
Selden v. Hendrickson & Pryor.
bottomry, while it relieves the owner from many of the perils
of maritime adventure, deprives him also of a great part of the
profits of a successful voyage ;” (this, I presume, alludes to
those cases of bottomry, where more than legal interest is re-
served;) “and, therefore,” continues Mr. Abbot, “in the place
of the owners’ residence, where they may exercise their own
judgment on the propriety of borrowing money in this manner,
the master of the ship is, by the maritime laws of all states,
precluded from doing it, so as to bind the interest of the owners
without their consent.”
“The meaning of the words, place of residence, (la demeure
des proprietaires,) has given occasion to some questions in
France. With us, I apprehend, the whole of England is consi-
dered, for this purpose, as the residence of an Englishman ; at
least before the commencement of a voyage.”(4)
Mr. Abbot cites no authority for supposing, that the whole of
England would, for this purpose, be the residence of an English-
man. Nor have I been able to find any express authority for it.
He gives it as his own speculative opinion, and he gives it with
considerable doubt, for he adds, “at least before the commence-
ment of a voyage.”
In the case of Watkinson v. Bernardiston, 2 P. W. 367, it is
said : “But it is true, that if at sea, where no treaty, or contract
can be made with the owner, the master employs any person to
do work on the ship, or to new rig, or repair the same, this,
for necessity and encouragement of trade, is a lien upon the
ship ; and, in such case, the master, by the maritime law, is
allowed to hypothecate the ship.” These words would rather
seem to include a port in England, info which an English vessel,
damaged during her voyage, might put for repair. Our country-
man, Mr. Livermore, takes the same view of the subject with
Mr. Abbot.
I am inclined to believe, that on this subject, the courts of
admiralty in England, would proceed according to the general
(4) Abbot, on Shipping, 151-[Editor.]
NOVEMBER TERM, 1819. 403
Selden v. Hendrickson & Pryor.
principles of the maritime law. The cases in the books, where
they have been restrained, by prohibition, would seem to jus-
tify the inference, that, if not so restrained, they would have
granted the relief which was sought, and in no case that I have
seen, has a prohibition been awarded to a court of admiralty,
proceeding on a bottomry bond, given by the master, in a dis-
tant English port, after the commencement of the voyage. In
fact, I can conceive no reason, why a master may not, for the
success of the voyage, hypothecate the vessel to secure a debt,
carrying only legal interest, in any case where he might bind
the owners personally: and it has been determined, that he may
bind them personally by his contract, for repairs made in Eng-
land, at a port where they do not reside.
Although it has never been decided affirmatively, that every
port in England is, for this purpose, the residence of an English
owner, it has been decided negatively, that a colonial port, or
a port in Ireland, or a port in Jersey, is not a home port.
On the same reason, I think it would be held, that a port in
Scotland, is not a home port for an English vessel. That this
is the prevailing opinion with legal men in England, I infer from
the language of Mr. Abbot, who says, that he apprehends that
“the whole of England,” not the whole of Britain, “is considered
for this purpose, as the residence of an Englishman.” I infer
it, too, from the general language of other cases, and particu-
larly of Wood et al. v. Hamilton, which was a case from Scot-
land, decided in the house of lords, and is mentioned by Abbot.
These cases show conclusively, that by the law of England, it
is not necessary that a vessel should be without the realm to
authorize the master to hypothecate her for repairs, or other ne-
cessaries, to enable her to prosecute her voyage. The same prin-
ciple, applied to the United States, requires, I think, that a port
in one state should not be considered as the place of residence
of owners, who live in another state. This rule of maritime law,
originates in the principle, that in the absence of the owner, the
master is, by himself, substituted for him ; that he is entrusted
with the vessel for the purpose of performing the voyage, and
404 . VIRGINIA.
Selden v. Hendrickson & Pryor.
must necessarily act for the owner in all cases where he is inca-
pable of acting for himself. The rule has no connexion with
territory, or with jurisdiction. In reason, then, the power
should exist whenever the necessity exists : and where there is
no positive law modifying a rule thus originating, it would seem
strange to insist, that the power of the master to act because the
owner is absent, should not commence with his voyage, but
should commence only on his passing the limits of the nation,
however wide, or however narrow, those limits might be. It
would be strange, if a vessel belonging to Eastport, might be
hypothecated by the master in the port of St. Andrews, because
the owner was absent, and yet could not be hypothecated at
New Orleans, St. Louis, or the mouth of Columbia.(5)
The reason of the case, then, concurs with the practise of mari-
time nations, in declaring that the owner cannot be considered
as present in every port belonging to the nation, but that some
subdivisional line, as the districts in France, must be taken, on
passing which, the power of the master commences. If every
port, except that in which the owner actually resides, be not for
this purpose, a foreign port, I perceive no rule more proper in
this country, no rule better adapted to our situation, and to the
reason of the thing, than to say, that the power of the master to
hypothecate, exists in every port out of the state in which the
owner resides, where he has no agent. I am, therefore, of
opinion, that a vessel belonging to the port of Richmond in Vir-
ginia, may be hypothecated in the port of New York by the
(5) In the case of The General Smith, [4 Wheat. 438; 4 Con. Rep. Sup. Ct.
U.S. 593.] Mr. Justice Stony said, that where repairs have been made, or neces-
saries have been furnished to a foreign ship, or to a ship in a port of the state
to which she does not belong, the general maritime law, following the civil law,
gives the party a lien on the ship itself for his security; and he may well main-
tain a suit in rem, in the admiralty, to enforce his right. But, in respect to repairs
and necessaries, in the port or state to which the ship belongs, (which was the
case before the Court), the case is governed altogether by the municipal law of
the state; and no lien is implied, unless it is recognized by that law. This last
proposition is also laid down by HoPKINS, J., in the case of Harper et al. v. The
New Brig, Gilpin, 536,-[Editor.]
NOVEMBER TERM, 1819. 405
Selden v. Hendrickson & Pryor.
*E=-
master, for necessary repairs, if the owner have no agent in New
York. &
This power is unquestionably limited by the necessity in
which it originates. The money for which the bond is taken
must be advanced on the faith of the bottom, and must be neces-
sary to enable the vessel to prosecute her voyage.(6) Both
these circumstances are proved in this case, if the witness is to
be believed.
I do not think myself at liberty to discredit him. His
character is unimpeached, and I do not see any intrinsic impos-
sibility in his statement. He might know all that he asserts
himself to know.
I cannot resist the suspicion, that these expenses were too
considerable, and that the master has not been faithful to his
owner. But this case presents no testimony, which will author-
ize a court to indulge this suspicion. There is no testimony,
whatever, which questions any one item of the account on
which the hypothecation was made, and every item of that
account is proved. -- ~~
It has been argued, that the owner might have had an agen
in New York. I should rather think, that negative proof, on
this point, ought not to be required from the person who
advances the money; but if it ought, Mr. Selden’s letter of the
24th of February, states expressly that he had no agent there. (7)
It is said, that the vessel remained in New York long enough
to have consulted the owner.
The time of her arrival is not mentioned. The first advance
was made on the 10th of February, and the instrument of hypo-
thecation is dated on the 17th. The evidence is, that the
advance was made on a contract of hypothecation, and this is
(6) The Aurora, cited, ante. The Virgin, 8 Peters's Rep. 538; Ship Lavinia
v. Barclay, cited, ante ; Walden v. Chamberlain, 3 Wash. C. C. R. 290; Craw-
ford v. The William Penn, ib. 484; Patton & Dixon v. The Schooner Randolph,
Gilpin, 457.-[Editor.]
(7) Philips v. Sedley, 1 Wash, C. C. R. 226.—[Editor.]
406 VIRGINIA.
Selden v. Hendrickson & Pryor.
supported by Mr. Selden’s letter of the 24th, in which he
acknowledges a letter of the 16th, giving notice of the fact.
That letter, too, contains an express assumpsit of the debt.
I do not perceive any just objection, in law, to the account,
and as the proof establishes both the necessity of the repairs, and
the fact that the advance was made on the credit of the bottom,
the judgment must be affirmed with costs. .
Çittttit (£0ttrt of the ºſmitti'ſ ºtăteş,
VIRGINIA, MAY TERM, 1820.
IBEFOR.R
Hon. JOHN MARSHALL, Chief Justice of the United States.
THoMson & DIxon v. THE UNITED STATEs.
(Case of the SCHooNER PATRIOT.)
Under the third section of the act of congress, passed on the 1st of March, 1809,
“to interdict the commercial intercourse between the United States, and Great
Britain, and France, and for other purposes,” commonly called the non-inter-
course law; which was re-enacted “against Great Britain, her colonies, and
dependencies,” on the 2d of March, 1811, the forfeiture of the vessel and cargo
attached, in accordance both with the letter and spirit of the law, the instant
that a British vessel came, voluntarily, within the limits of the United States.
And the arrival of the vessel within the Chesapeake Bay, is an “arrival within
the limits of the United States,” in the sense of the act.
The allegation, admitting it be true, that the owner was advised to take a pilot
on board, because a storm might be expected, (the weather being fair at the
time,) is not sufficient to bring the vessel within the eacception of the law, viz.,
vessels “forced in by distress, or by the dangers of the sea.”
The non-intercourse law, was not repealed by the declaration of war with Great
Britain, except so far as its provisions were inconsistent with a state of war,
and were annulled by the paramount operation of the laws of war. The laws
408 VIRGINIA.
Case of the Schooner Patriot.
of war condemn the vessel, but do not reach the cargo. The municipal law
condemned both vessel and cargo. The non-intercourse law, therefore, was
not entirely abrogated by the declaration of war, but was left to operate in full
force on the cargo. -
Where a subject of a foreign government, at peace with the United States, is
employed by American citizens, as agent and supercargo, to carry a cargo to a
foreign port, dispose of it there, and bring back to the United States, a return
cargo, consisting of articles interdicted by the municipal law : and before the
arrival of the agent, with the return cargo, within the United States, war is
declared between the United States, and the government of which the agent
and supercargo is a subject: and after such declaration of war, the agent and
supercargo, brings the vessel, (the property of the agent,) with her cargo,
within the limits of the United States: the cargo is not exempted by these cir-
cumstances, from the operation of the municipal law, interdicting its introduc-
tion, under pain of forfeiture. Although the agent, at the time of the arrival
of the vessel and cargo, within the United States, was an alien enemy, and
although war, if it does not dissolve, at least suspends, all contracts between
enemies, and enables the belligerent to annul them ; although the cargo was
brought within the United States, by the enemy agent, without the consent of
the American proprietors: still, the enemy character of the agent, acting under
his original authority, cannot exempt his employers from the penalty attached,
by law, to the offence so committed. ' **
THIS was a libel against the schooner Patriot, a British
vessel, and her cargo, owned partly by a British subject, and
partly by citizens of the United States, which arrived in the
Chesapeake Bay, in June 1812, three days after the declaration
of war, between the United States and Great Britain, from the
island of Guadaloupe, a British colony, contrary to the several
acts of congress, to interdict the commercial intercourse between
the United States and Great Britain, her colonies and dependen-
cies. The district court of the United States at Norfolk, con-
demned the vessel and her cargo, and from this decree, the clai-
mants appealed to this court.
The following opinion was delivered by
MARSHALL, C. J.-The schooner Patriot, a British vessel,
then lying in the port of Norfolk, was purchased in February
1812, by Oswald Lawson, a British subject, then, and for some
time before, a resident of the town of Norfolk. This purchase
MAY TERM, 1820. 409
Case of the Schooner Patriot.
was made by Lawson, at the instance of Henry Thomson, and
Robert Dickson, citizens of the United States, whose object was,
a mercantile voyage to the West Indies, and who advanced the
whole purchase-money, and took a bottomry bond, as security
for the repayment thereof. The schooner sailed for the West
Indies in Feb. 1812, with a cargo owned by Thomson & Dixon,
which was placed under the control of Oswald Lawson, as
supercargo. He sold his cargo in the West Indies, and took on
board at Guadaloupe, a return cargo, consisting of sugars, be-
longing chiefly to Thomson & Dixon, with which he sailed
from Guadaloupe in May 1812, bound to Halifax, in Nova
Scotia, but with a determination to lie off the Capes of Virgi-
nia, until explicit instructions should be received from Thom-
son, one of the owners of the cargo, residing in Norfolk. She
arrived off the Capes of Virginia in June, immediately after the
declaration of war was known in Nörfolk. Lawson, the super-
cargo and owner of the vessel, being ignorant of that event,
despatched the mate with a letter of advice to Thomson, and
determined to await the return of his messenger off the coast.
In this interval, however, he entered the capes, but sailed out
of them again, without coming to anchor. The mate never
returned, he being seized in Norfolk, as a prisoner of war.
Two days after the mate had been landed, while the Patriot was
lying off on the coast, about ten miles from land, and about forty
south of the capes, she fell in with a pilot boat, and took a pilot
on board. The supercargo says, that he at first declined taking
a pilot on board, as the vessel was not bound inward, but was
persuaded by the pilot to do so, who represented the probabi-
lity of an approaching storm from the coast. To avoid this
storm, he determined to wait within the capes for instructions.
The pilot taken on board, who was an apprentice of the owner
of the boat, denies that such advice was given. The vessel was
brought within the capes, with the knowledge of Lawson, the
owner and supercargo.
On its being known in Norfolk, that a British vessel was off
the capes, the revenue cutter was sent to take her, and fell in
Vol. I.-3 F
410 *, VIRGINIA.
Case of the Schooner Patriot.
gas---
with her, about three miles within the capes, in the road leading
to Lynhaven Bay, and also to Hampton Roads. She was brought
into Norfolk and libelled.
The first allegation of the libel is, that she was a British
schooner, which had come within the limits and territories of
the United States of America, having on board a cargo of the
growth, &c., of a dependency of Great Britain, to wit, of the
island of Guadaloupe.
The second allegation is, that the cargo was imported into the
United States, contrary to the true intent and meaning of the
acts of congress.
The third charge alleges, that the cargo was taken on board,
for the purpose of being imported into the United States, with
the knowledge of the owner. --
Before entering into the consideration of the arguments be-
longing to the cause, it may not be altogether improper to notice
some preliminary observations, which were made on the union
of the prize jurisdiction, with that over municipal forfeitures, in
the courts of the United States. As this union is not the act of
the court, the only remark which will be made respecting it, is,
that in this case, it can have no possible operation on the clai-
mants, unless it be one which is beneficial to them. . By ming-
ling the proceedings, ship papers, which were obtained under
the practice in prize causes, might be offered on a prosecution
for a municipal forfeiture. How far the use of such papers
might be allowed, is a question which will be decided, when
the case occurs. In this case, those papers are not offered.
Having been seized by the officers of the United States, the
owners are excused for their non-production, and the voyage is
admitted to be, according to their own statement of it. The
seizure of the ship's papers, therefore, is either unimportant in
this case, or an advantage to the claimants.
The forfeiture of the vessel and cargo, is claimed under the
third section of the act, “to interdict the commercial intercourse
between the United States, and Great Britain, and France, and
for other purposes,” which was passed on the 1st of March,
MAY TERM, 1820. 411
Case of the Schooner Patriot.
1809, and was re-enacted “against Great Britain, her colonies,
and dependencies,” on the 2d of March, 1811.(1)
By the third section of the act of 1809, the entrance into the
harbours and waters of the United States, is interdicted to all
ships or other vessels, sailing under the flag of Great Britain, or
France, or owned, in whole or in part, by any subject or citi-
zen of either. And if any such vessel shall “arrive, either.
with or without a cargo, within the limits of the United States,
or of the territories thereof, such ship or vessel, together with
the cargo, if any, which shall be found on board, shall be for-
feited,” &c. -
Under this section the Patriot, which was a British vessel,
and her cargo, part of which belonged to citizens of the United
States, were condemned in the district court.
The claimants have appeared, and contend that this sentence
is erroneous ; because, -
1st. The Patriot had not arrived within the limits of the
United States, at the time when she was seized by the revenue
cutter. *
The term “arrival,” when applied to a vessel, is said to be
equivalent to the term “importation,” when applied to goods;
and a vessel cannot be properly said to have arrived, within the
meaning of the act, whose cargo might not, with equal propriety,
be said to be imported.
Without denying or affirming that in the laws of congress, the
term “importation,” when applied to a cargo, is precisely
equivalent to the term “arrival,” when applied to a vessel, I
will inquire, whether the meaning of the word itself be in any
manner ambiguous. “To arrive” is a neuter verb, which, when
applied to an object moving from place to place, designates the
fact of “ coming to” or “reaching” one place from another, or
of coming to or reaching a place by travelling, or moving
towards it. If the place be designated, then the object which
reaches that place has arrived at it. A person who is coming to
(1) 2 Story’s L. U. S., ch. 91. § 3. p. 1115, and Ib. ch. 96. p. 1187.-[Editor.]
412 VIRGINIA.
2’
Case of the Schooner Patriot.
Richmond, has arrived when he enters the city. But it is not
necessary to the correctness of this term, that the place at which
the traveller arrives should be his ultimate destination, or the
end of his journey. A person going from Richmond to Norfolk,
by water, arrives within Hampton Roads, when he reaches that
place; or, if he diverges from the direct course, he arrives in
Petersburg, when he enters that town. This is, I believe, the
universal understanding of the term. Thus, the duty law re-
quires, that the master of every vessel bound to Bermuda Hun-
dred, or City Point, shall, on his arrival in Hampton Roads, or at
Sewall’s point, deposit his manifest with the collector of Nor-
folk, or of Hampton. It also requires, that the master of any
vessel, bound to any port of the United States, shall, on his
arrival within four leagues of the coast, upon demand, produce
his manifest, in writing, to any officer of the eustoms who shall
first come on board. No person can doubt, that in the first case,
the vessel bound to City Point, has arrived in Hampton Roads,
when she enters the road; and that a vessel bound to any port
of the United States, say to Boston, has arrived within four
leagues of the coast, when she comes within that distance of land.
It would be useless to multiply quotations on this point. The
literal sense of the word seems too plain for controversy. When
the law enacts, that a British vessel, which arrives within the
limits of the United States shall be forfeited, the forfeiture
attaches, according to its letter, the instant that a vessel comes,
voluntarily, within those limits. Now, whatever doubt may
exist respecting the application of this term to any part of the
open sea, no doubt, I believe, has ever been suggested respecting
the Chesapeake Bay. That bay is clearly within the limits of
the United States; and the forfeiture, under the letter of the act,
is as complete as if it had attached, by the words, on her arrival
within the Chesapeake Day.
Is the spirit of the law more favourable to the claim than its
letter 2 By the spirit of the law, I understand, the intention of
the legislature, to be collected from the general language of the act,
the scope of its provisions, and the objects to be attained.
MAY TERM, 1820. 413
Case of the Schooner Patriot.
The object of this section cannot be doubted. It is to exclude
all vessels owned by British subjects, from the waters of the
United States. Its language conveys this intention, and is obvi-
ously calculated to carry it into full effect. The other sections
of the law, which are designed to prohibit all intercourse with
Great Britain, and to exclude all British goods, show a rigorous
determination on this whole subject, which forbids the suspicion
that the intention of the legislature, or in other words, the spirit
of the law, is more, favourable to the claimants than its letter.
If this be the object of the act, can we doubt that it would
have been completely defeated by allowing British vessels to
come unmolested within the Chesapeake, and the other bays of
the United States? If the Patriot might enter the Chesapeake
with impunity, where is the line drawn, or who has drawn it,
which she might not pass? Might she not pass the mouth of
the James, the York, the Rappahannock, or the Potomac P Are
any of these points more certainly within the limits of the United
States, than this middle ground within the capes? And if British
vessels, laden with British goods, might with impunity lie within
the Chesapeake, and the other bays of the United States, what
would become of the non-intercourse act?
The Patriot being completely within the enacting clause, it is
scarcely necessary to say that she has not brought herself within
the exception. She was not “forced in by distress, or by the
dangers of the sea.” The only allegation which looks towards
this subject is, that the owner was advised to take a pilot on
board, because a storm might be expected. No storm had com-
menced. All was fair. But the pilot said one might be expected.
Even this is denied by the pilot who was put on board. But, ad-
mitting the allegation to be true in its utmost extent, can this
imagined fear, this apprehension of uncertain danger, satisfy the
words, “forced in by the dangers of the sea?” If they may,
language seems to have lost its use, and I am persuaded that non-
intercourse laws would do very little good or harm.(2)
(2) The necessity must be urgent, and proceed from such a state of things as
may be supposed to produce on the mind of a skilful mariner, a well grounded ap-
414 n VIRGINIA.
Case of the Schooner Patriot.
I think, then, it cannot be doubted, that the Patriot, being
stated in the claim to have belonged to a British subject, comes
within the third section of the act. This would be my opinion,
were it a case of the first impression. But the point is, I think,
decided in the Penobscot. (3)
2d. The second point made for the claimants is, that the non-
intercourse act of 1809, was not re-enacted by the act of March
2d, 1811, so far as respected British vessels. Although the
third section of that act is expressly re-enacted, yet its re-enact-
ment is limited. It is to be carried into effect, “against Great
Britain, her colonies, and dependencies.” So much of the act,
then, as relates merely to British vessels, has been, it is said,
permitted to expire. This strict exposition of the words is the
more to be insisted on, because the law is highly penal.
Let this argument be examined,
The original act respected equally the vessels of France and
I3ritain, and articles of their growth, produce, or manufacture.
Its object was to interdict the entrance into the waters of the
United States, to the vessels of both nations, and to forbid all com-
mercial intercourse with either of them. The 1st and 2d sections
of the act, relate solely to national ships. The 3d section is con-
fined to vessels owned, wholly, or in part, by the subjects of Great
Britain or of France. The 4th, 5th, and other sections, relate to
the dominions, &c. of the two countries, and to articles which
are the growth, produce, or manufacture of either. They also
contain provisions, calculated to secure the exclusion of those
articles from the United States.
After making a painful experiment of the restrictive system
against both nations, the law was permitted to expire, and the
policy of the United States was in some degree varied. An act
prehension of the loss of the vessel and cargo, or of the lives of the crew. It is not
every injury that may be received in a storm, as the splitting of a sail, the spring-
ing of a yard, or a trifling leak, which will excuse a violation of the laws of trade.
LIVINGSTON, J., in the case of the New York, 3 Wheat. 68; The AEolus,
3 Wheat. 395.-[Editor.]
(3) 7 Cranch, 356; 2 Con. Rep. Sup. Ct. U. S. 528,-[Editor.]
MAY TERM, 1820. 415
Case of the Schooner Patriot.
was passed on the 1st of May, 1810, promising, that if either
belligerent would so revoke or modify its edicts, that they should
cease to violate the neutral commerce of the United States, the
sections of the non-intercourse law, which have been recapitu-
lated, should, three months thereafter, be “revived, and have
full force and effect, so far as relates to the dominions, colonies,
and dependencies, and to the articles, the growth, produce, or
manufacture of the dominions, colonies, and dependencies, of the
nation refusing or neglecting to revoke, or modify, her edicts, in
the manner aforesaid.”
The president having issued his proclamation, on the 2d of
November, 1810, announcing, as a fact, that the decrees of France
were revoked, as required by the act of the 1st of May pre-
ceding, congress, on the 2d of March, 1811, passed the act under
which the Patriot and her cargo have been condemned. The
case depends on the question, whether the 3d section is re-en-
acted so far as respects British vessels, *
The language of the law, certainly, does not import a complete
re-enactment of the whole of those sections. They are in terms
re-enacted, “against Great Britain, her colonies, and dependen-
cies.” The question, whether these words comprehend the
interdiction of our waters, to vessels owned by British subjects,
is undoubtedly open for argument, and for consideration. In
deciding it, we must search by legitimate means for the inten-
tion of the legislature, and be guided by that intention. Was
it the intention of the legislature to revive the whole act, so far
as it respected Great Britain, with, perhaps, the exception of
its territorial operation, which may be created by omitting its
provision respecting her possessions? Or only to revive those
parts of the act, which relate exclusively to those breaches of
it, which are connected with territory? Such, for example,
3S importing a cargo from “Great Britain, her colonies, or de-
pendencies” ”
That the act of 1809 is not revived generally, is satisfactorily
accounted for, when we recollect that it was originally directed
against both Great Britain and France, and that the legislature
designed to re-enact it against Great Britain only. If we advert
416 VIRGINIA.
Case of the Schooner Patriot.
to this fact, and recollect the history of the times, we shall be but
little inclined to the opinion, that congress could have intended
to leave our ports open to British vessels, when all commercial
intercourse between the two countries was prohibited. It seems
impossible to assign a motive for this particular relaxation. The
policy of the United States, was directed with at least as much
earnestness against the navigation, as against the manufactures, of
Great Britain. But what seems conclusive on this point is, that
the section is expressly revived, and yet contains not one word
which relates to the territories of Great Britain, its colonies, or
dependencies. The section is limited to ships owned wholly or
in part by British subjects. Consequently, it applies to those
vessels or to nothing.
The legislature might have revived the 3d section only. Had
this been done, could it have been said that it was not revived as
to vessels, because it was said to be revived against Great Bri-
tain, her colonies, and dependencies? Not a syllable in the sec-
tion relates to colonies and dependencies ; and not a syllable to
Great Britain, except the prohibition to her. vessels. To have
said in that case, that the section was not revived as to vessels,
would have been to ascribe to the legislature a declaration, that a
particular section should be revived in a manner to have no ef-
fect whatever: or to make a law, with an exception co-extensive
with its whole enactment. Such a construction must be totally
inadmissible. The actual case is stronger than that supposed,
because, in the actual case, other sections are revived, which might
suggest the propriety of adding the words, “colonies and do-
minions” to Great Britain.
It cannot, I think, be necessary to add any thing to this argu-
ment. Yet I will observe, that the act of May 1, 1810, which
was perpetual, provided for the whole subject which was re-
enacted in March 1811. I can conceive no motive for the last
law, other than an apprehension, which I believe was not well
founded, that the courts might not have received the proclama-
tion of the president as conclusive evidence that the fact had
occurred, on which the non-intercourse was to be enforced
against Great Britain; or might have received other testimony
MAY TERM, 1820. 417
Case of the Schooner Patriot.
than his proclamation, to prove that Great Britain had modified
her edicts so as not to affect the neutral commerce of the United
States. Choosing to place it beyond doubt, that this fact was to
be decided by the President alone, congress passed the act of
March 2, 1811. This being the sole conceivable motive for that
act, it cannot be doubted that it was made, or at least intended to
be made, co-extensive with the act of May 1, 1810. Yet there
are many material variances in the language of the two acts.
That of May 1, 1810, enacts, that if the one nation shall revoke
her edict, and the other shall not, then the 3d, 4th, &c. sections
of the non-intercourse act “shall be revived, and have full force
and effect so far as relates to the dominions, colonies, and depen-
dencies, and to the articles, the growth, produce, or manufacture
of the dominions, colonies, and dependencies, of the nation so
refusing, &c.”
The act of March 2, 1811, which carries this promise and
threat into execution, omits the very material words “and to the
articles, the growth, produce, or manufactures,” &c., and de-
clares only, that the several recited sections of the original act,
“shall be carried into effect against Great Britain, her colonies
and dependencies.” The omission of these very material words
might be urged to prove, that the non-intercourse law was not
re-enacted with respect to articles of the growth, produce or
manufacture of Great Britain, her colonies or dominions, if im-
ported from other than British territory, with at least as much
plausibility as the omission to declare, in reviving the 3d section,
which relates only to British vessels, that it shall be enforced
against British vessels. -
To prove that the law was not revived as to British vessels, it
has been urged, that if it was in force when the Patriot was
seized, it is in force now, for which no person will contend; or
at least remained in force until a commercial treaty was formed
between the two nations, since it was certainly not repealed by
the act of the 14th of April 1814. +'.
This is true; but I do not think that an inadvertence of this
kind, an inadvertence sufficiently accounted for, by the exist-
VoI. I.-3 G
4.18 ** VIRGINIA.
Case of the Schooner Patriot.
ence of a war, which of itself excluded British vessels, when the
repealing act passed, and the oblivion into which the return of
peace threw the whole subject, can influence the construction of
the acts of 1810 and 1811.*
An argument which produces the only serious doubt which
can arise in this case, remains to be noticed. It is, that the 3d
section of the non-intercourse act was repealed by the declara-
tion of war. -
It has been argued, that all the provisions of that act were
obviously adapted to a state of peace: that the declaration of war
changed so entirely the relations of the two countries to each
other, as to render those provisions, which were made for a state
of peace, totally inapplicable to that new state in which war
placed the parties. This argument has been illustrated, by show-
ing the incompatibility of those provisions which respect the na-
tional ships of Great Britain, with a state of war. *
It is certainly true that the whole system of non-inter-
course was framed, with a view to a continuance of a state of
peace. But it does not follow, that positive and general regula-
tions, formed in language equally adapted to peace or war, shall,
because they were particularly intended for a state of peace,
expire on a declaration of war, unless there be something in war
totally incompatible with their continuance. When this is the
case, the declaration of war, being a national act of complete
obligation, repeals all laws inconsistent with the state in which
it places the nation, on the principle that posterior laws abrogate
those which are anterior. But when the laws can exist and be
executed together, I know of no principle which will authorize
the Court to say that the last law repeals the first. This princi-
ple is completely illustrated by different parts of the case now
under consideration. The first section of the original non-
intercouse act, forbids the national vessels of Great Britain, to
enter the waters of the United States, and authorizes the presi-
* NotE, by C. J. JMarshall. This is a mistake. There is a repealing act,
which was not observed when this opinion was drawn.
MAY TERM, 1820. 419
Case of the Schooner Patriot.
dent to employ the military and naval force of the nation, for
the removal of any vessel, which shall violate this provision of
the act. The declaration of war, makes it the duty of the presi-
dent not to obey this mandate of the non-intercourse law, but to
capture the vessel as prize of war. It is obvious, that this last
law as entirely abrogates the first during its continuance, as if it
had in terms commanded the president not to remove the offend-
ing vessel from the waters of the United States, but to cause her
to be brought in as prize of war. But those provisions of the
act, which prohibit the importation of goods of British manufac-
ture, &c., though framed in time of peace, for a state of peace,
are not incompatible with a state of war, and they may be con-
tinued, or discontinued, at the will of the legislature. I cannot,
then, consider them as repealed by the mere declaration of war.
British manufactures, the property of a friend, may be intro-
duced or prohibited, in peace or in war, as shall seem wise to
the legislature. A law, then, prohibiting them, which does not in
its terms, depend on peace or war, would seem to me not to be
repealed by a declaration of war. The will of the legislature
for its repeal must be more directly expressed, or the law con-
tinues in force. * - e
But if we examine our course of legislation on this subject,
we shall find conclusive evidénce that, in the opinion of the
legislature, the law continued in force. Immediately after the
declaration of war, the prize act was passed. The 14th section
of this act repeals so much of all preceding acts, as may pro-
hibit the introduction, into the United States, of goods of Brit-
ish manufacture, &c. as may be captured from the enemy, and
be made good and lawful prize of war.(4) There cannot be a
stronger evidence of the opinion of the legislature, that this
declaration of war left their non-intercouse law in full force.
Afterwards, on the 14th of April, 1814, the act laying an
embargo was repealed, and so much of every act, as prohibits
(4) Act concerning letters of marque, prizes and prize goods, passed June 26th,
1812. 2 Story’s Laws, U. S. ch. 107, § 14, p. 1264—[Editor.]
420 VIRGINIA.
Case of the Schooner Patriot.
*E=
the importation of British goods, &c., or as prohibits the impor-
tation of any goods from Great Britain, &c., is repealed.
We observe, that the embargo law is totally repealed. But
the non-intercourse law is repealed only in part. The language
of the act, shows the opinion of the legislature to have been,
that parts of the act still remained in force. If, then, we respect
the very intelligible opinion of the legislature, or are governed
by those rules which generally prevail, in the construction of
statutes, I think, we must be brought to the conclusion, that
the non-intercourse law, so far as respected goods, &c., imported
from Great Britain, her colonies, or dependencies, or articles of
the growth, produce, or manufactures of Great Britain, or her
dependencies, imported from any place whatever, continued in
force, after the declaration of war.
That the act continued in force, so far as respected vessels,
owned by British subjects, is not quite so obvious. Since every
vessel, forfeited under the non-intercourse law, would also, if
captured, be forfeited by the laws of war, it may well be
doubted, whether the declaration of war does not suspend so
much, at least, of the non-intercourse law, as applies to the very
objects, to which the laws of war apply. The Patriot, for ex-
ample, was a vessel belonging to the enemy, subject to capture,
according to the laws of war. The revenue cutters are a part of
the naval force of the United States, which may be employed
by the president, to prosecute the war, and the 14th section of
the prize act, recognizes captures made by them. It may, there-
fore, admit of some doubt, whether this, so far as respects the
vessel itself, may not be a belligerent capture. But suppose this
to be admitted, does it follow, that the non-intercourse law may
not apply to the cargo The laws of war condemn the vessel,
but do not reach the cargo. The municipal law condemns both
vessel and cargo. If the paramount operation of the laws of war
upon the subject, overreaches the municipal forfeiture of the
vessel, does it, therefore, discharge the cargo, to which its pro-
yisions do not extend ? The declaration of war does not appear
MAY TERM, 1820. 42}
Case of the Schooner Patriot.
to me, to affect the municipal forfeiture in any case, in which it
does not itself dispose of the subject.
The strongest point of view, in which this question has been
placed, remains still to be considered. The owner of the Pa-
triot was an enemy. He was on board, and had the control of
the vessel. He brought her into the Chesapeake, and it is de-
nied, that his act can forfeit the goods of the American claimant.
War, it is said, by way of illustrating this argument, dissolves
all contracts between enemies ; and, if the owner of the Patriot,
instead of bringing her into the Chesapeake, had carried her
into the Thames, he would not, even after the return of peace,
have been responsible to the owners of the cargo.
It will be admitted, that war, if it does not dissolve contracts
between enemies, suspends their obligation, and enables the
belligerent to annul them. It is also admitted, as a consequence
of this principle, that if the owner of the Patriot had carried
her into the Thames, and there libelled her cargo, he could not
have been made responsible for it. The reason is, that those
paramount duties which the war imposed upon him, would, in a
legal sense, justify the act of carrying enemy property into the
ports of his country, and protect him from the consequences of
that act. The right of property would have been changed, by
an act which the law had rendered lawful ; and, however that
act may wound the moral sense, the law cannot punish it. But,
although the war would have justified the carrying the Patriot
into the Thames, it did not justify bringing her into the Chesa-
peake, in violation of a statute of the United States. That act,
therefore, remains exposed to the same punishment, as if war
had not been declared.
It has been argued, that the act of an enemy, to which the
American proprietor of the cargo has not consented, ought not
to affect his property ; and that the declaration of war having
dissolved the connexion between the parties, the act of bringing
the vessel into the waters of the United States, is to be consi-
dered as if it had been an act of violence by any other person,
without authority.
A22 VIRGINIA.
Case of the Schooner Patriot.
But this argument is rather calculated to perplex, than to
satisfy, the mind. Lawson had, in fact, the direction of the
voyage, and continued in that direction. Although he might,
with impunity, have ceased to act as the agent of the owners of
the cargo, and have acted as an enemy, yet he did not divest
himself of the character of an agent, nor assume that of an
enemy. Acting under his original authority, he violated the
laws of the United States; and those who employed him must,
I think, pay the penalty incurred by that violation. The enemy
character of an agent, cannot, I think, exempt his employer,
from the penalty attached by law, to an offence. But the words
of the act, subject to forfeiture the cargo of a citizen imported
in a British vessel. The terms of the law punish the act, with-
out inquiring into the criminal intent. The cargo of a British
vessel, arriving within the limits of the United States, is exempt
from forfeiture only, if “forced in by distress, or by the dan-
gers of the sea.” These are the only exceptions found in the
act. If any others can be introduced by construction, they must
be founded on the substantial principles of equity, not on the
technical subtleties of law.
It has also been argued, that had this vessel been captured
and brought in by an American cruizer, or even by the owners
themselves, the cargo would not have been forfeited.
This may be true. But in that case, the captors would have
been in the exereise of the rights of war; and the vessel, with
her cargo, would have been brought injure belli. In this case,
the act declaring war, and the prize act, might have operated on
the municipal forfeiture, and have suspended it. But in the
case which has occurred, the act which created the forfeiture is
not performed in the exercise of the rights of war, but is an act
totally unconnected with war.
I have considered this case with no disposition favourable to
the condemnation of this cargo. But, according to the view I
have taken of the subject, the cargo is liable to forfeiture, in
consequence of being in a British vessel, which has arrived
MAY TERM, 1820. 423
Case of the Brig Wilson.
within the limits of the United States, while the non-intercourse
law was in force. I shall not regret it, if a higher tribunal shall
be of a different opinion.
The sentence of the district court is affirmed with costs.
ſ
THE BRIG WILsoN (Ivory HUNTREss, Claimant,) v. THE
UNITED STATEs.
--
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
The 31 sect. of the act of congress, passed on the 2d of March, 1799, “to regulate
the collection of duties on imports and tonnage,” which exempts “ships or
vessels of war” from the necessity of making a report and entry, on arriving at
any of the ports of the United States, from any foreign port or place, extends
as well to privateers as to national ships.
The power of controlling navigation, is incidental to the power to regulate com-
merce, which the constitution confers upon congress; and, consequently, the
power of congress over the vessel, is co-extensive with that over the cargo.
The act of congress of the 28th of February, 1803, forbidding any master or
captain of a ship or vessel, to import or bring, into any port of the United
States, any negro, mulatio, or other person of colour, under certain penalties,
where the admission or importation of such persons is prohibited by the laws
of such state, does not apply to coloured seamen, employed in navigating such
ship or vessel. |
APPEAL from the district court of Norfolk. ,”
The brig Wilson, Ivory Huntress, commander, was libelled
in the court below, and the vessel, with her tackle, apparel, and
furniture, thirty-one demijohns of brandy, thirteen cases of gin,
and several other articles, claimed as forfeited to the United
424 VIRGINIA.
3.
Case of the Brig Wilson.
States, for violating the act of congress “to regulate the collec-
tion of duties on imports and tonnage;” and also for bringing
into the state of Virginia, several persons of colour, from a
foreign port, contrary to the laws of the said state, and in con-
travention of the act of congress, entitled, “an act to prevent
the importation of certain persons into certain states, where, by
the laws thereof, their admission is prohibited.”
The four first counts of the libel, charged, that the said spirits,
&c., were imported, and brought into the United States, on the
day of October, 1819, by sea, in vessels of less capacity
than ninety gallons, wine measure, from some foreign port,
unknown, into the port of Norfolk, in Virginia, on board the
brig Wilson, which were not mentioned in the manifest and
report made by the commander of the vessel, but were carefully
concealed, for the purpose of evading the payment of the duty
thereon, and were discovered by an agent, specially appointed by
the collector of the port of Norfolk, after diligent search, &c.
The fifth count in the libel, charged, that the said brig
Wilson, so arriving in the port of Norfolk, in Virginia, had
on board three persons of colour, not being native citizens or
registered seamen of the United States, or seamen, natives of
countries beyond the Cape of Good Hope, the admission or
importation of such persons being prohibited by the laws of
Virginia; and that the said three persons of colour were landed
from on board the said brig, contrary to the form of the act of
congress, whereby the said vessel, her tackle, &c., had become
forfeited to the United States.
The claimant and respondent, Huntress, in his answer to the
above libel, admitted that the brig Wilson did come into the port
of Norfolk, on or about the 27th day of October, 1819, having on
board the brandy and gin, &c. mentioned in the libel, but affirm-
ed that the Wilson was a private vessel of war, duly commis-
sioned by the United Provinces of Venezuela, and New Grenada,
and belonged to a citizen thereof, and that she sailed from Mar-
guerita, on a cruize, about the 18th of August preceding, with a
crew of nearly ninety persons: that in addition to the stores and
MAY TERM, 1820. 425
Case of the Brig Wilson.
—-4
other supplies, taken on board at Marguerita for the use of the
crew, sundry articles of merchandise were captured on the
high seas, as prize of war, and among them, the brandy and gin
now libelled, which were intended to be used as sea stores of
the ship, and not as merchandise. That the vessel put into the
port of Norfolk, with intent to refit, and obtain supplies in the
United States, without any intention, that the spirit should be
unladen, or sold in the United States, and with intent that the
same should be carried out again on the departure of the vessel.
That on board of such armed vessels, it is not within the pro-
vince of the captain, personally to inspect, or take an account
of such articles, when on board; but the practice is, that such
inspection and account are made and taken by some inferior
officer, on whose official report of the quantity he relies. That on
the arrival of the vessel at Norfolk, the first and second officer
having departed, he gave orders to the clerk to examine, and
report the articles on board, to enable this respondent to make
his report to the collector of the port of Norfolk. That the
failure of the clerk to enumerate the demijohns of brandy, and
cases of gin, in the manifest, was purely accidental, resulting
from the haste in which it was prepared, and the confusion on
board. That these articles were not concealed, but were depos-
ited in the usual and proper place on board the vessel, and with
the other articles reported in the manifest, and delivered to the
collector. In responding to the fifth count in the libel, he denied
that the three persons of colour were landed from on board the
Wilson, and affirmed that they were persons engaged in the
navigation of a foreign armed vessel, and constituted part of her
crew. He, therefore, prays restitution, &c.
The evidence on behalf of the United States, consisted in the
depositions of William Bush, supernumerary inspector of the
customs for the port of Norfolk; of W. P. Davis, captain of a
pilot boat ; of Francis Benson, commander of a revenue cutter ;
and of Alexander Tunstall, deputy collector for the port of
Norfolk.
Bush said, that he was ordered on board of the brig Wilson
Vol. I.-3. H
426 VIRGINIA.
A-------a-º.
Case of the Brig Wilson.
on the 28th of October, 1819, to see the powder discharged.
After the powder was discharged, under his inspection, the vessel,
which had been lying between the forts, got under weigh and
went up into the harbour. On the 29th of October, captain Hun-
tress made out prize tickets for his crew, a number of whom
were persons of colour. The deponent examined their baggage,
but found no merchandise among it. He visited the ward room,
birth deck, cabin, and forecastle, and in the ward room discovered
a great variety of articles, and among the rest, several demijohns
of Spanish brandy, and cases of gin, which he was told were ship
stores, and which were not comprised in the manifest given in
on the 31st of October, by the captain. On the 1st of Novem-
ber, deponent went on board again, by request of the captain,
and found a great part of the crew discharged that morning, of
different colours and nations, whose baggage he inspected, and
found no merchandise in it. While on board, captain Benson,
in the revenue boat, came along side, and assisted him in ex-
amining the vessel, and they ſound the same articles previously
spoken of f
The deposition of Benson was to the same effect.
Davis stated, that about half way between Old Point Comfort
and Cape Henry, he, being the commander of the pilot boat
Anne of Hampton, on the 26th of October, 1819, about 10 or 11
o'clock P. M. was hailed, by some person on board of a vessel,
then at anchor on the horse shoe, who inquired if there were
any men of war in Hampton Roads, and then requested him to
come on board, and take some goods, which he refused to do.
The person conversing with him, said the vessel was called the
brig Wilson. She was the same vessel detained by the officers
of the customs, and then in dispute.
Tunstall said, that on the day, or the day following that on
which the search was directed of the brig Wilson, Captain
Huntress made an application at the office of the customs, to
make a post entry of a number of articles, stating that he had
depended on his officers, and in consequence of an improper
report from them, the goods were not included in the manifest.
MAY TERM, 1820. 427
Case of the Brig Wilson. |
He was informed that if the proper entry was not made, from
accident or mistake, it might be corrected. The captain then
stated that some of the articles not entered, were taken at sea.
This conversation took place after the discovery of the articles,
spoken of by Bush and Benson, and about four days after the
entry had been made, all of which articles were omitted in the
manifest. On being interrogated what was the usual allowance
per man in merchant ships, of spirits as stores, the deponent
stated, that about four gallons per man were usually allowed, but
that this depended somewhat on the length of the voyage, and
in the case of armed cruizers, they had generally come in short
of stores, and no instance of excess had occurred in practice to
settle the rule in the office.
On the part of the claimant, the depositions of several of the
officers of the brig Wilson, were read, all substantially proving
the same facts, viz.: That about the 12th of August preceding,
the privateer brig, Wilson, Ivory Huntress, commander, sailed
from Marguerita, under a commission from the government of
Venezuela, and proceeded to St. Thomas : that while at St.
Thomas, the crew of the vessel was reinforced, by the addition
of some eighteen seamen, principally people of colour, and all
free. The vessel then sailed from St, Thomas, on an intended
cruize of six months. At this time, the crew consisted of about
eighty or ninety, inclusive, and among them were many free
people of colour. During the cruize, two Spanish schooners,
and one English ship, having Spanish property on board, were
captured. The ship, and one of the schooners, were sent under
prize masters to Marguerita, and the other schooner was aban-
doned, after some mutineers from the Wilson were put on
board. From this schooner, they took on board of the Wilson,
as prize, various articles, among them, demijohns of brandy,
cases of gin, &c. The brandy and gin, and other small articles,
were added to the stock of stores for the crew, and some of the
gin was repeatedly afterwards served out to the crew. Several
days before they reached the United States, when the Wilson
was on the outer edge of the gulf stream, she fell in with an
American schooner, called the Wasp, bound for Baltimore, and
428 VIRGINIA.
Case of the Brig Wilson.
*r-
put on board of her several articles of merchandise, which were
captured from the Spanish schooner, and Thomas B. Grey, of
the Wilson, was sent in with the goods to Baltimore. The
Wilson arrived at Norfolk, on the 27th of October, 1819, having
put in to refit, with intent to depart and resume her cruize in a
short time. \ -
The district court, on the hearing of the cause, decreed, that
the 31 demijohns of brandy, the 13 cases of gin, and merchan-
dise, according to schedule, were forfeited to the United States,
under the 29th and 68th sections of the act of congress, entitled,
“an act to regulate the collection of duties on imports and ton-
nage.” “And it appearing to the court, that three persons of
colour, as charged in the libel, were brought in, and landed
from the said brig Wilson, not being native citizens, or regis-
tered seamen of the United States, or seamen, natives of coun-
tries beyond the Cape of Good Hope, in violation of the act of
congress of the United States, entitled, “an act to prevent the
importation of certain persons into certain states, where, by the
laws thereof, their admission is prohibited :” whereby the said
brig Wilson, together with her guns, stores, tackle, apparel, and
furniture, have become forfeited to the United States, and they
are decreed to be forfeited accordingly.”
From this deeree, the claimant appealed to this Court.
The following opinion was delivered by
MARSHALL, C. J.-The four first counts of this case, present
for the consideration of the Court, a general question of consi-
derable importance. It is this: Does the act, “to regulate the
collection of duties on imports and tonnage,”(1) apply to priva-
teers, not engaged in the importation of goods
(1) “..And be it further enacted, That it shall not be necessary for the master,
or the person having the charge, or command, of any ship or vessel of war, or of
any ship or vessel, employed by any prince, or state, as a public packet, for the
conveyance of letters and despatches, and not permitted, by the laws of such
prince, or state, to be employed in the transportation of goods, wares, or mer-
chandise, in the way of trade, to make such report and entry, as aforesaid.”
[Act of March 2d, 1799, ch. 128. § 31; I Story’s L. U. S., 600.]—[Editor.]
MAY TERM, 1820. 429
Case of the Brig Wilson.
The 31st section enacts, “that it shall not be necessary for the
master, or person having the command of any ship or vessel of
war, &c., to make such report and entry as aforesaid.”
If the words “ship or vessel of war,” be construed to com-
prehend a privateer, there is an end of this part of the case,
because, if no report or entry is required, it cannot be pretend-
ed, that any of the provisions of the act extend to a privateer,
demeaning herself in her military character, and not performing
the office of a merchant vessel.
The counsel for the appellant has certainly urged many rea-
sons, which have great weight in favour of the construction for
which he contends. The term, “ship or vessel of war,” has
been considered, and, I think, properly considered, as a generic
term, including both national ships, and private armed ships.
When it is used generally, it comprehends both, unless the con-
text, or the subject matter, should exclude the one or the other.
The authorities cited at the bar, show, that courts and writers
on public law, have used the term in this general sense.
If either the language, or the objects of this law, be consulted,
I think they strengthen this natural and comprehensive construc-
tion of these words.
The object of the law, is professedly and obviously to raise a
revenue from commerce and consumption, not to regulate the
conduct of the ships of war, whether public or private, of
foreign nations. All the regulations are obviously calculated for
merchant vessels, and not one calculated for privateers, who
might come into our ports, although a totally distinct provision
for them, would certainly be necessary.
The language of the law, applies it to vessels destined for the
United States, not to vessels destined for a cruize on the high
seas. The form of the manifest requires, that the importer
should state, to what port the vessel is bound, and to whom the
goods are consigned : regulations not adapted to goods captured
at Sea, by a cruizer.
If this act applies to privateers, the tonnage duty would be
demandable. But it cannot be supposed, that this duty is im-
430 - VIRGINIA.
Case of the Brig Wilson.
posed on privateers, employed in cruizing, and not in the con-
veyance of merchandise.
It is also an argument, which deserves consideration, that the
policy of the United States has been unfriendly to the sale, in
our ports, of prizes made by foreign privateers, on nations with
whom we are at peace. Some of our treaties contain express
stipulations against it ; and the course of the government has
been, to prohibit the practice, even where no specific engage-
ments bind us to do so. Were the revenue laws, applicable to
privateers, and to their prizes and prize goods, they would give
a right to introduce those goods, in opposition to the avowed
and uniform policy of the government. The doctrine, that the
validity of prizes could not be adjudged in our ports, would be
of little importance, if they could be brought in and sold.
I think, then, that our revenue laws do not apply to priva-
teers, unless they take up the character of merchant-men, by
attempting to import goods. When they do so, they attempt,
under the garb of their military character, to conceal real com-
mercial transactions. This would be fraud on the revenue laws,
which no nation will or ought to tolerate. The privateer, which
acts as a merchant vessel, must be treated and considered as a
merchant vessel.
In this case, there is no evidence, that any goods were land-
ed, or that more were brought in, than were intended to be
carried out. The only evidence, which I think at all important,
is that of the pilot. His testimony, certainly, excited suspi-
cion. Opposed to it, however, is the testimony of the witnesses
belonging to the vessel, who say, that the spirits were designed
for the crew, to be used as stores.
I proceed, now, to the fifth count in the libel.
The first question which will be considered in this part of the
case, will be the constitutionality of the act of congress, under
which this condemnation has been made. -
It will readily be admitted, that the power of the legislature
of the Union, on this subject, is derived entirely from the 3d
clause of the 8th Section of the 1st article of the Constitution.
MAY TERM, 1820. 431
Case of the Brig Wilson.
That clause enables congress, “to regulate commerce with
foreign nations, and among the several States, and with the
Indian Tribes.”
What is the extent of this power to regulate commerce 2
Does it not comprehend the navigation of the country May
not the vessels, as well as the articles they bring, be regulated 2
Upon what principle is it, that the ships of any foreign nation
have been forbidden, under pain of forfeiture, to enter our ports?
The authority to make such laws has never been questioned;
and yet, it can be sustained by no other clause in the Constitu-
tion, than that which enables congress to regulate commerce.
If this power over vessels is not in congress, where does it
reside 2 Certainly it is not annihilated; and if not, it must
reside somewhere. Does it reside in the states ? No American
politician has ever been so extravagant as to contend for this.
No man has been wild enough to maintain, that, although the
power to regulate commerce, gives congress an unlimited power
over the cargoes, it does not enable that body to control the
vehicle in which they are imported : that, while the whole
power of commerce is vested in congress, the state legislatures
may confiscate every vessel which enters their ports, and con-
gress is unable to prevent their entry. Let it be admitted, for
the sake of argument, that a law, forbidding a free man of any
colour, to come into the United States, would be void, and that
no penalty, imposed on him by Congress, could be enforced :
still, the vessel, which should bring him into the United States,
might be forfeited, and that forfeiture enforced; since even an
empty vessel, or a packet, employed solely in the conveyance
of passengers and letters, may be regulated and forfeited. There
is not, in the Constitution, one syllable on the subject of naviga-
tion. And yet, every power that pertains to navigation has
been uniformly exercised, and, in the opinion of all, been right-
fully exercised, by congress. From the adoption of the Consti-
tution, till this time, the universal sense of America has been,
that the word commerce, as used in that instrument, is to be
considered a generic term, comprehending navigation, or, that a
432 VIRGINIA.
Case of the Brig Wilson.
control over navigation is necessarily incidental to the power to
regulate commerce. g
I could feel no difficulty in saying, that the power to regulate
commerce, clearly comprehended the case, were there no other
clauses in the Constitution, showing the sense of the convention
on that subject. But there is a clause which would remove the
doubt, if any could exist. -
The first clause of the ninth section, declares, that “the
migration or importation of such persons as any of the states,
now existing, shall think proper to admit, shall not be prohibited
by the congress, prior to the year 1808.” This has been truly
said to be a limitation of the power of congress to regulate
commerce, and it will not be pretended, that a limitation of a
power is to be construed into a grant of power. But, though
such a limitation be not a grant, it is certainly evidence of the
extent which those who made both the grant and limitation,
attributed to the grant. The framers of our Constitution could
never have declared, that a given power should not, for a limited
time, be exercised on a particular object, if, in their opinion, it
could never be exercised on that object. -
Suppose the grant and the limitation be brought together, the
clause would read thus: “Congress shall have power to regulate
commerce, &c. but this power shall not be so exercised, as to
prohibit the migration, or importation of such persons, as any
of the states now existing, may think proper to admit, prior
to the year 1808.” Would it be possible to doubt, that the
power to regulate commerce, in the sense in which those words
were used in the Constitution, included the power to prohibit
the migration, or importation, of any persons whatever, into the
states, except so far as this power might be restrained by other
clauses of the Constitution ? I think it would be impossible.
It appears to me, then, that the power of congress over vessels,
which might bring in persons of any description, whatever, was
complete before the year 1808, except that it could not be so
exercised, as to prohibit the importation or migration of any
persons, whom any state, in existence at the formation of the
MAY TERM, 1820. 433
Case of the Brig Wilson.
Constitution, might think proper to admit. The act of congress,
then, is to be construed with a view to this restriction, on the
power of the legislature; and the only question will be, whether
it comprehends this case ?
The case is, that the brig Wilson, a private armed cruizer,
commissioned by the government of Buenos Ayres, came into
Norfolk, navigated by a crew some of whom were people of
colour. They were however, all free men, and all of them
sailors, composing a part of the crew. While in port, some of
them were discharged, and came on shore. -
The libel charges that three persons of colour were landed
from the vessel, whose admission or importation was prohibited
by the laws of Virginia, contrary to the act of congress, by
which the vessel was forfeited. ' ~.
Is this case within the act of congress, passed the 28th of
February 1803 (2)
(2) [..An act to prevent the importation of certain persons into certain states,
where, by the laws thereof, their admission is prohibited.
SECT. 1. Be it enacted, That from and after the first of April next, no
master or captain of any ship or vessel, or any other person, shall import
or bring, or caused to be imported or brought, any negro, mulatto, or other
person of colour, not being a native, a citizen, or registered seaman, of the
United States, or seamen, natives of countries beyond the Cape of Good Hope,
into any port or place of the United States, which port or place shall be situated
in any state, which, by law, has prohibited, or shall prohibit, the admission, or
importation of such negro, mulatto, or other person of colour. And if any cap-
tain, or master aforesaid, or any other person, shall import or bring, or cause to
be imported or brought, into any of the ports or places aforesaid, any of the per-
sons whose admission or importation, is prohibited, as aforesaid, he shall forfeit
and pay the sum of one thousand dollars for each, and every negro, mulatto, or
other person of colour aforesaid, brought or imported as aforesaid; to be sued for
and recovered by action of debt, in any court of the United States; one half
thereof to the use of the United States, the other half, to any person or persons
prosecuting for the penalty: and in any action instituted for the recovery of the
penalty aforesaid, the person or persons sued, may be held to special bail : Pro-
vided always, That nothing contained in this act, shall be construed to prohibit
the admission of Indians, * *
Vol. I.-3 I
434 - VIRGINIA.
Case of the Brig Wilson.
The first section, which is the prohibiting part of the act, is
in these words: “From and after the first day of April next, no
master or captain of any ship or vessel, or any other persons,
shall import or bring, or cause to be imported or brought, any
negro, mulatto, or any person of colour, &c.” There are nice
shades or gradations in language, which are more readily per-
ceived than described, and the mind impressed with a particular
idea, readily employs those words which express it most appro-
priately. Words which have a direct and common meaning,
may also be used in a less common sense, but we do not under-
stand them in the less common sense, unless the context, or the
clear design of the person using them, requires them to be so
understood. Now the verbs, “to import,” or “to bring in,”
seem to me to indicate, and are most commonly employed as
indicating, the action of a person on any thing, animate or inan-
imate, which is itself passive. The agent, or those who are con-
cerned in the agency or importation, are not, in common lan-
guage, said to be imported or brought in. It is true that a vessel
coming into port, is the vehicle which brings in her crew, but
Sect. 2. And be it further enacted, That no ship or vessel, arriving in any of
the said ports or places of the United States, and having on board any negro, mu-
tatto or other person of colour, not being anative, a citizen, or registered seaman of the .
United States, or seamen, natives of countries beyond the Cape of Good Hope, as
aforesaid, shall be admitted to an entry. And if any such negro, mulatto, or other
person of colour, shall be landed from on board any ship, or vessel, in any of the
ports or places aforesaid, or on the coast of any state prohibiting the admission or
importation as aforesaid, the said ship or vessel, together with her tackle, apparel,
and furniture, shall be forfeited to the United States, and one half of the net pro-
ceeds of the sales on such forfeiture shall inure, and be paid over, to such person
or persons, on whose information the seizure on such forfeiture shall be made.
SECT. 3. And be it further enacted, That it shall be the duty of the collectors,
and other officers of the customs, and all other officers of the revenue of the
United States, in the several ports or places situated as aforesaid, to notice, and be
governed by, the provisions of the laws now existing, in the several states, prohib-
iting the admission or importation of any negro, mulatto, or other person of colour,
as aforesaid. And they are hereby enjoined vigilantly to carry into effect the
said laws of said states, conformably to the provisions of this act; any law of
the United States to the contrary notwithstanding. Act of February 28th, 1803,
ch. 63.]—[Editor.]
MAY TERM, 1820. 435
Case of the Brig Wilson.
we do not in common language say, that the mariners are “im-
ported,” or brought in by a particular vessel; we rather say
they bring in the vessel. So, too, if the legislature intended to
punish the captain of a vessel, for employing seamen of a
particular description, or for allowing these seamen to come on
shore, we should expect that this intention would be expressed
by more appropriate words, than “to import” or “bring in.”
These words are peculiarly applicable to persons not concerned
in navigating the vessel. It is not probable, then, that in making
this provision, a regulation respecting the crew of a vessel was
in the mind of congress. But it is contended, on the part of
the prosecution, that the succeeding words of the sentence, ex-
empting certain descriptions of persons from the general pro-
hibition, show that the prohibition itself was intended to com-
prehend the crew, as well as those who did not belong to the
vessel. Those words are, “not being a native, a citizen, or regis-
tered seaman of the United States, or seamen natives of coun-
tries beyond the Cape of Good Hope.”
That this limitation, proves the prohibition to have been in-
tended to comprehend freemen, as well as slaves, must, I think,
be admitted. But it does not follow, that it was, also, intended
to comprehend the crew of a vessel, actually employed in her
navigation, and not put on board, in fraud of the law. A person
of colour, who is a registered seaman of the United States, may
be imported, or brought into the United States, in a vessel in
which he is not employed as a mariner. The construction,
therefore, which would extend the prohibitory part of the sen-
tence, to the crew of the vessel, in consequence of the language
of the exception, is not a necessary construction, though I must
admit, that it derives much strength from that language.
The forfeiture of the vessel is not, in this section of the act,
but I have noticed its construction, because it is not reasonable
to suppose, that it was intended to forfeit a vessel for an act,
which was not prohibited. The second section enacts, “that no
ship or vessel, arriving in any of the said ports or places of the
United States, and having on board any negro, mulatto, or
436 VIRGINIA.
Case of the Brig Wilson.
other person of colour, not being a native, a citizen, or regis-
tered seaman of the United States ; or seamen, natives of coun-
tries beyond the Cape of Good Hope, as aforesaid, shall be
admitted to an entry.”
It is obvious, that this clause was intended to refuse an entry
to every vessel, which had violated the prohibition contained in
the first section ; and that the words, “having on board” were
used, as co-extensive with the words “import,” or “bring.” We
had, at that time, a treaty with the Emperor of Morocco, and with
several other Barbary powers. Their subjects are all people of
colour. It is true, they are not so engaged in commerce, as to
send ships abroad. But the arrival of a Moorish vessel in our -
ports, is not an impossibility; and can it be believed, that this
law was intended to refuse an entry to such a vessel ? It may
be said, that an occurrence which has never taken place, and
which, in all probability, never will take place, was not in the
mind of congress; and, consequently, the omission to provide
for it, ought not to influence the construction of their acts. But
there are many nations, with whom we have regular com-
merce, who employ coloured seamen. Could it be intended by
congress, to refuse an entry to a French, a Spanish, an English,
or a Portuguese merchant vessel, in whose crew there was a man
of colour I think this construction could never be given to
the act. The words, “ having on board a negro, mulatto, or
other person of colour,” would not, I think, be applied to a
vessel, one of whose crew, was a person of colour.
The section then proceeds : “And if any such negro, &c.,
shall be landed from on board any ship or vessel, &c., the said
ship or vessel, &c., shall be forfeited.”
“The words, “shall be landed,” seem peculiarly applicable
to a person, or thing, which is imported, or brought in, and
which is landed, not by its own act, but by the authority of the
importer, not to a mariner, going on shore voluntarily, or on the
business of the ship. The words, “such negro,” &c., refer to
the preceding passages, describing those whom a captain of a
vessel is forbidden to import, and whose being on board a vessel
MAY TERM, 1820. 437
Case of the Brig Wilson.
excludes such vessel from an entry, and no others. If, then, the
commentary, which has been made on those passages, is correct,
the forfeiture is not incurred by a person of colour, coming in
as part of a ship’s crew, and going on shore.
Although the powers of Barbary, do not send merchant ships
across the Atlantic, yet their treaties with us, contemplate the
possibility of their cruizers entering our ports. Would the
cruizer be forfeited, should one of the crew come on shore ?
I have contended, that the power of congress to regulate
commerce, comprehends, necessarily, a power over navigation,
and warrants every act of national sovereignty, which any other
sovereign nation may exercise over vessels, foreign or domestic,
which enter our ports. But there is a portion of this power, so
far as respects foreign vessels, which it is unusual for any nation
to exercise, and the exercise of which would be deemed an
unfriendly interference with the just rights of foreign powers.
An example of this would be, an attempt to regulate the manner
in which a foreign vessel should be navigated in order to be
admitted into our ports; and to subject such vessel to forfeiture,
if not so navigated. I will not say, that this is beyond the
power of a government, but I will say, that no act ought to have
this effect given to it, unless the words be such as to admit of no –
other rational construction. *
I will now take some notice of that part of the act which has
a reference to the state law. -
The language, both of the Constitution and of the act of con-
gress, shows, that the forfeiture was not intended to be inflicted
in any case but where the state law was violated. In addition
to the words, in the first and second sections of the act, which
confine its operation to importations, into “a state which, by
law, has prohibited, or shall prohibit, the importation of such
negro,” &c.; the third section enjoins it on the officers of the
United States, in the states having laws containing such prohi-
bition, “to notice and be governed by the provisions of the
laws, now existing, of the several states, prohibiting the admis-
sion or importation of any negro, mulatto, or any person of
4.38 - - VIRGINIA.
Case of the Brig Wilson.
colour, as aforesaid.” This is not inflicting a penalty for the
violation of a state law, but is limiting the operation of the
penal law of the United States, by a temporary demarcation
given in the Constitution. The power of congress to prevent
migration or importation, was not to be exercised prior to the
year 1808, on any person whom any of the states might think
proper to admit. All were admissible who were not prohibited.
It was proper, therefore, that the act of congress should make
the prohibitory act of the state, the limit of its own operation.
The act of congress does not, necessarily, extend to every object
comprehended in the state law, but neither its terms, nor the
Constitution, will permit it to be extended farther than the
state law. :
The first section of the act “to prevent the migration of free
negroes and mulattoes”(3) into this commonwealth, prohibits
their coming voluntarily or being imported. The second sec-
tion imposes a penalty on any master of a vessel, who shall
bring any free negro or mulatto. The third section provides,
that “the act shall not extend to any masters of vessels, who
shall bring into this state any free negro or mulatto, employed
on board, and belonging to such vessel, and who shall therewith
depart.” The act, then, does not prohibit the master of a vessel,
navigated by free negroes or mulattoes, from coming into port,
and setting only part of his crew on shore, provided they depart
with the vessel. The state prohibition, then, does not com-
mence, until the vessel departs without the negro or mulatto
seaman. No probability, however strong, that the vessel will
depart without the seaman, can extend the act to such a case,
until the vessel has actually departed. If this be true, neither
does the act of congress extend to such a case.
But this is not all. The act of assembly prohibits the admis-
sion of free negroes and mulattos only, not of other persons of
colour. Other persons of colour were admissible into Virginia.
. (3) See I Revised Code of Virginia of 1819, § 64, 65, 66, ch. cxi., p. 437-8.-
[Editor.] -
MAY TERM, 1820. 439
Gallego, Richard & Co. v. The United States.
The act of congress makes a clear distinction between free
negroes, and mulattos, and other persons of colour. But so
much of the act of congress, as respects other persons of colour,
does not apply to Virginia, because such persons were admissible
into this state. -
The libel charges the sailors landed, to have been persons of
colour, not negroes or mulattos. If, under this libel it were
allowable to prove, that the sailors landed, were, in fact, negroes
or mulattos, it is not proved. Mr. Bush does not prove, that
any were landed, but says, that those discharged were “ of dif-
ferent colours and nations.” Andrew Johnson says, “that on
the 29th of October, the people of colour received their prize
tickets, went on shore, and, of course, took their own dis-
charge.” - -
There is, then, no evidence, that these people were negroes
or mulattos. Upon these grounds, I am of opinion, that no for-
feiture of the vessel has been incurred, and that so much of the
'sentence as condemns the brig Wilson, ought to be reversed,
and restitution awarded.
GALLEgo, RICHARD & Co. v. THE UNITED STATEs.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
The power conferred on the secretary of the treasury, by the act of congress of
the 2d of January, 1813, to remit any fine incurred by any importer of goods,
wares, and merchandise, from Great Britain, which were shipped between the
23d of June, and the 23d of December, 1812, if it appeared to the satisfaction
of the secretary, upon petition by the claimants, that the property was, bona
Jide, owned by a citizen or citizens of the United States, extended to the case
440 VIRGINIA.
Gallego, Richard & Co. v. The United States.
of a joint interest, between citizens of the United States and Great Britain,
and might rightfully be exercised in favour of such joint owners, being citizens
of the United States.
The construction of that law, was the peculiar province of the secretary of
the treasury. The duty of the court was, simply to institute an inquiry
into the facts of the case, and to transmit a certified statement of them, with
the petition, to the secretary ; and the court, in which the prosecution ori-
ginated, had no authority to revise the acts of the secretary, done in execution
of it.
APPEAL from the district court of Norfolk.
The ship “John and Adam,” Thomas Drake, master, arrived
in the port of Norfolk in Virginia, on or about the 21st day of
October, IS12, from the port of London, whence she sailed,
early in the August preceding, with a cargo of British goods,
wares, and merchandise. The ship and her cargo, were seized
by the collector of the customs for the port of Norfolk, and on
the 19th day of December, 1812, the attorney for the United
States, filed a libel in the district court of Norfolk, against the
said ship, her tackle, apparel, and furniture, and her cargo,
reciting these facts, and praying the court to condemn them, as
forfeited to the United States. The appellants, citizens of the
United States, and merchants, carrying on trade at Richmond,
Virginia, presented their petition to the district judge of the
United States at Norfolk, stating, that they had, for several
years past, had large transactions with John Gilliat of London;
and that in November 1811, a correspondence commenced be-
tween them, for the importation of goods and merchandise, to
be purchased by him in England, some on joint account, and
some on the sole account of the petitioners, and shipped to the
petitioners in Virginia, as soon as free intercourse between the
two countries should be lawfully restored. That the said Gilliat
subsequently purchased the goods and merchandise, composing
the cargo of the “John and Adam,” but before the news of the
declaration of war was received in England, and that the said
goods were shipped, and did depart from the port of London,
between the 23d day of June, and the 23d day of December,
MAY TERM, is20. 441
Gallego, Richard & Co. v. The United States.
1812, in the “John and Adam,” for the port of Richmond,
Virginia, and that John Gilliat, and the petitioners, were joint
owners of her cargo : that the shipment of the said goods and
merchandise, was nearly completed, before information of the
war was received in England : that the said ship sailed from the
Downs, on the 9th day August, 1812; and having arrived at
the port of Norfolk, the ship and cargo were seized by the col-
lector of the customs, and libelled by the attorney for the United
States, in the district court of Norfolk, as forfeited to the United
States, for an alleged breach of the laws, interdicting commer-
cial intercourse between the United States and Great Britain:
that process of monition and attachment had been issued in the
said libel, by virtue whereof, the said goods and merchandise,
had been attached and taken into the custody of the marshal, and
had since been surrendered to the petitioners, upon giving bonds
in the usual form for their appraised value, duties, &c. : that the
petitioners conceived themselves entitled to the benefit of an act
of congress, of the 2d of January, 1813, entitled, “an act di-
recting the secretary of the treasury to remit fines, forfeitures,
and penalties in certain cases,” and prayed that the judge would
cause an inquiry to be made into the matters aforesaid, and that the
facts as they appeared upon such inquiry, might be stated and
annexed to the petition, and transmitted to the secretary of the
treasury, to the end, that such relief might be extended to them,
as the law in such case provided.
In the statement of facts, transmitted by the district judge, to
the secretary of the treasury, with the petition, it was certified,
that the petitioners were citizens of the United States, that the
goods, &c., composing the cargo of the “John and Adam,” at
the time of their shipment at the port of London, were the
joint property of the petitioners, and John Gilliat, and that the
same were shipped, and did depart from the port of London,
between the 30th day of July, and the 9th day of August, 1812,
and that they were not purchased on account of the petitioners,
and the said Gilliat, after war was known to exist between the
United States and Great Britain.
VoI. I.-3 K
442 VIRGINIA.
Gallego, Richard & Co. v. The United States.
The secretary of the treasury directed the remission of the
fines, &c. which had been incurred by the petitioners, upon their
several shares thereof, or interest therein, upon payment of costs,
charges, and duties.
The district court of Norfolk, after reciting that the secretary
of the treasury had decided to remit the forfeiture of the goods,
so far only as related to the interest of Gallego, Richard & Co.,
on the motion of the attorney for the United States, directed
the libel to be dismissed, as to the interest of the said firm, but
inasmuch as the exact extent of that interest could not be other-
wise ascertained by the court, ordered the parties to file with
the clerk, the entire correspondence between themselves and
Gilliat, touching the purchase, shipment, &c. of the goods in
question, the invoice thereof, and a statement, verified by oath,
showing in detail, what part of the goods, &c. were shipped on
the sole account of Gallego, Richard & Co., and their respective
interest, in those shipped on joint account. The appellants
having failed to comply with this order, the court, at a subse-
quent term, set aside the order dismissing the libel, as to them,
and decreed, ordered, and adjudged, that the whole cargo of the -
“John and Adam” be forfeited to the United States, as the
property of John Gilliat, or some other person or persons, sub-
jects of Great Britain, and as such, liable to forfeiture, and con-
demnation to the United States.
From this decree, Gallego, Richard & Co. appealed to this
Court.
MARSHALL, C. J.-A complexion unfavourable to the appel-
lants has been given to this case, by their refusing, or failing,
when required, to exhibit to the district court, any testimony,
whatever, establishing the extent of their interest in the cargo
of the “John and Adam.” This conduct is well calculated to
impress on the mind, a suspicion that their interest was, in truth,
less than the moiety which they now claim. If, when at the
time sentence of condemnation was pronounced, this inquiry
was open for the district court, the judge had certainly a right to
expect, and it was his duty to require, full satisfaction upon it.
MAY TERM, 1820. 443
Gallego, Richard & Co. v. The United States.
If that subject was closed, then no inquiry ought to have been
instituted ; and the sentence of condemnation ought to have
extended to that part of the cargo only, which was not compre-
hended in the remission of forfeiture, made by the secretary of
the treasury, in pursuance of the act of congress of the 2d of
January, 1813,(1) the extent of which, in that view of the case,
must be ascertained by the instrument itself. ! :-
Upon examining the act of congress, I felt much doubt
whether it applied to any case of a joint interest, between
American citizens and British subjects. The case described by
the act is, “goods, wares, and merchandise, owned by a citizen,
or citizens of the United States ;” not, “goods, &c. owned in
whole, or in part by a citizen.” The act then speaks of the
time of shipment, and adds—“ and the person or persons, inter-
ested in such goods, &c., or concerned in the importation thereof,
have incurred any fine, &c.” “ on such person or persons, peti-
tioning for relief, &c.” “in all such cases, wherein it shall be
proved to his satisfaction, that said goods, wares, and merchan-
dise, at the time of their shipment were, bona fide, owned by a
citizen, or citizens of the United States, &c.” the secretary
of the treasury is directed to remit, &c. It might well be
doubted, whether the power of the secretary of the treasury,
is extended to any case where the specific articles are not wholly
owned by citizens of the United States. But the language of
the act is not free from ambiguity, and it refers to an act passed
the 3d of March, 1797,(2) which, in express terms, applies to
any interest the petitioner may have. In construing the act, no
reason can be perceived, for distinguishing between the interest
of an American citizen, when joint and when sole ; and it is an
act intended for the protection of the citizen, which ought to be
construed liberally, so as to effect that intention. In addition to
these considerations, the act has already been construed by the
district judges, I presume, from the proceedings in this case, and
(1) 2 Story’s Laws U. S., ch. 149, p. 1283.--[Editor.]
(2) I Story's Laws U. S., ch. 67, p. 458–IEditor.]
444 - VIRGINIA.
Gallego, Richard & Co. v. The United States.
certainly by the treasury department, to embrace cases where
American citizens are jointly concerned with British subjects.
The construction put on the act by the department, entrusted
with the power of remission, ought to be respected by the court.
I shall, therefore, consider it as comprehending this case.
I am now to inquire, whether the secretary of the treasury
has remitted any ascertained portion of the cargo of the “John
and Adam,” or has remitted an undefined interest in that cargo,
leaving it to the court to ascertain its extent.
The act of 1813, directs the same proceedings on the petition
of the party applying for relief, as are directed by the act of
1797. That act, directs the district judge, to inquire into the
circumstances of the case, and to “cause the facts which shall
appear on such inquiry, to be stated and annexed to the petition,
and direct their transmission to the secretary of the treasury of
the United States, who shall thereupon, have power to mitigate
or remit, &c. -
By this act, the court is to put the secretary in possession of
all the facts of the case, with the petition, before he exercises
the power given him by congress.
The act of 1813, enacts—“ and on the facts being shown on
inquiry had by such judge or court, stated and transmitted as by
said act,” (the act of 1797,) “is required ; in all such cases, .”
where it shall be proved to his satisfaction, &c.”—“the secre-
tary of the treasury is directed to remit all fines, penalties, and
forfeitures, that may have been incurred,” on certain conditions
in the act expressed, and to direct the prosecution to cease. t
The legislature seems to have intended, that the act of the
treasury department, should be final and conclusive, and that all
the facts should be placed before him, before he performs that
act. Those articles, the forfeiture of which is remitted, are of
course restored to the proprietor. The prosecutions, if insti-
tuted, are to cease. It would seem to be a part, and an essential
part, of the duty of the secretary, to define the articles on which
this remission operates; or if it be only on a certain interest on
those articles, to define that interest. If the statement of facts
MAY TERM, 1820. 445
Gallego, Richard & Co. v. The United States.
made by the court, did not enable the secretary to ascertain this
interest, it would seem to be his duty, to require a more full
statement ; and the case should go back to him for a final deci-
sion. It seems to be a part of his duty, not only to say, that
the forfeiture shall be remitted, but to define, with precision, the
objects on which this remission shall operate.
If this view of the law be correct, it would seem to follow,
that the remission granted by the secretary of the treasury,
ought to be construed to dispose entirely of the subject, if it can
fairly be so construed. * . * ~.
Let the remission itself, with the papers to which it refers,
be considered, for the purpose of determining, whether it ascer-
tains its own extent, or refers that point to the court.
The petition states an application on the part of the petition-
ers, to John Gilliat, a merchant of London, to ship goods, some
on the sole account of the petitioners, and some on joint account;
and that, in consequence of this application, the cargo in ques-
tion was purchased, which the petition avers to have been the
sole property of Gilliat, and the petitioners. The statement,
transmitted by the judge with this petition, asserts, “that the
said goods, wares, and merchandise, at the time of their ship-
ment at the port of London, in the kingdom of Great Britain,
were the joint property of the said Joseph Gallego, John Richard,
Michael Benedict Poiteaux, and John Gilliat.” The secretary
of the treasury, after reciting this petition and statement, says:
“ and whereas, it has been proved to my satisfaction,” (How
proved Certainly by the statement. The instrument refers
to no other testimony, nor does the law authorize him to receive
any other,) “that part of the goods, &c., were, bona fide, owned
by citizens of the United States, &c. :” “Now, therefore,
know ye, that I, &c., do hereby remit to the petitioners afore-
said, all the fines, &c., incurred as aforesaid, on their several
shares thereof, or interest therein, upon the costs and charges,”
&c., being paid. “And do, also, direct the prosecution, or pro-
secutions, if any shall have been instituted for the recovery
thereof, to cease on payment of the costs,” &c.
446 VIRGINIA.
Gallego, Richard & Co. v. The United States.
There is nothing in the statement of facts, which shows
any right in the petitioners, to any separate part of the cargo.
The words, therefore, “their several shares thereof, or interest
therein,” must refer to their undivided shares or interests, not
to any distinct property, they might possibly hold in severalty.
The remission is to take place, not on their ascertainment of
their interest or shares, but on their paying charges and duties;
and the prosecutions are to be discontinued, not on their proving
to the court, the extent of their interest, but on paying the costs.
These circumstances, as well as the view I have taken of the
duty of the treasury department, lead to the opinion, that the
secretary considered the extent of the interest of the petitioners,
as already established, and did not mean to institute a new
inquiry into that subject. It was considered as established in
the statement submitted to him by the court, which represents
them to have been jointly concerned with Gilliat. -
Suppose the law to have required, that the prosecution should
have been instituted in one court, and the petition and statement
to have passed through another. Could the court in which the
prosecutions were depending, have proceeded to an investigation
of the extent of the interest of the petitioners, after receiving
this instrument of dismission from the treasury department? I
believe it could not, if by any construction, the statement of
the district court, and the act of remission, could be understood
to define the extent of the remission. The whole subject passes,
it is true, through the same court; but that court is to exercise
different powers, in different stages of the proceeding. All
which relates to the property, is to be completed before the
statement is submitted to the secretary of the treasury. The
secretary acts on that statement, and his acts cannot be revised
by the Court.
Sentence reversed as to a moiety.
MAY TERM, 1820. 447
WILson v. LE Roy, BAyARD & Mºlver.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
A charter-party was entered into during the war between England and the
United States, and during the blockade of the Chesapeake by the British fleet,
by which the plaintiff let his ship to the defendants, to carry flour from Nor-
folk to Cadiz; and covenanted to deliver the flour, “excepting always restraints
of princes and rulers;” and the freighters covenanted to pay the freight. The
ship was provided with a Sidmouth license, but the charter-party does not ex-
press it; yet the fact was well known to the defendants, who, as well as the
plaintiff, relied on the protection afforded by that license. The date of the
charter-party, was the 31st of January, 1813. After the ship was loaded, it
was ascertained that the license would afford no protection against the blockading
squadron. The defendants, on the 3d of March, by letter, directed, that the
ship should not proceed to sea under existing circumstances; on the 19th of
June, they directed, that she should continue ready to prosecute the voyage as
soon as the blockade should be raised ; and, finally, in the J anuary following,
the blockade still continuing, they directed, that the flour should be delivered to
their order, which was done. Held : 1. That the procurement of the license,
vitiates the contract as much as if it had been inserted in the charter-party.
2. That, although freight cannot be recovered, yet the various directions given
by the defendants amounted to a new contract, which may be enforced; and
the ship owner was entitled to an equitable compensation for his labour, and the
expenses incurred by him prior to the 3d of March; from that time, to the 19th
of June; and after the last day, to January 1814, when the flour was delivered
by the plaintiff to the order of the defendants. -
THE plaintiff, George Wilson, in October 1815, exhibited
his bill against the defendants, Le Roy, Bayard & M*Iver, mer-
chants, and residents of the state of New York, and against
Moses Myers & Son, residents of Norfolk, in Virginia, who
held in their hands effects of, and were otherwise indebted to,
the said Le Roy, Bayard & Mºver, in the chancery court held
in Williamsburg, Virginia. At the May Term, 1816, of that
court, the cause, on the petition of the defendants, Le Roy & Co.,
was removed to this Court, under the authority of the act of
congress. In December 1817, those defendants filed their
448 VIRGINIA.
Wilson v. Le Roy, Bayard & Mºſver.
answer, and the cause came on to be heard at the May Term
1820. The opinion of the court gives so full a view of the
facts and circumstances of the case, that it is deemed unnecessary
to give a farther statement. -
On the 7th of June, 1820, the following opinion was delivered by
MARSHALL, C. J.-The bill states that, on the 21st of January,
1813, the plaintiff, being owner of the Woodrop Simms, char-
tered her to James Dykes & Co. agents for Robert Pollard, who
was agent for Le Roy, Bayard & M*Iver, to carry a load of
flour from Norfolk, to Cadiz, for a freight of $3, per barrel, and
five per cent primage. Having received a full cargo, 3407 bar-
rels, he was about to despatch her, when on the 3d of March, he
received a letter from Dykes & Co. forbidding him on the part
of Le Roy, Bayard & M*Iver, from sending her to sea, under
existing circumstances, (meaning the blockade,) and iſ he did,
he would be held responsible. This letter was answered on the
same day, expressing his readiness to prosecute his voyage, but
that he should conform to the instructions he had received, hold-
ing Le Roy, Bayard & Mºlver, answerable for freight, &c. The
blockade still continuing, the plaintiff on the 17th of June, 1813,
wrote to Robert Pollard, proposing to change the voyage of the
ship, on terms which he expressed. Robert Pollard rejected
these terms, and insisted on the ship’s going to sea so soon as she
could sail, without violating the blockade. The blockade still
continuing, and the warm weather commencing, the plaintiff
was compelled to land the flour. The blockade appearing to be
as lasting as the war, the flour was kept in store, and the plain-
tiff offered to abandon the voyage, on being paid a sum which
he thought a reasonable compensation for his trouble and ex-
pense. On the 11th day of January, 1814, he received a letter
from Moses Myers & Son, as agents, demanding the flour, and
proffering their own responsibility, to comply with the decision
of a court, as to the quantum of compensation. The flour was
delivered, and this suit brought. It is prayed that a master may
be decreed to report, what sum is due, and that it may be paid.
MAY TERM, 1820. 449
Wilson v. Le Roy, Bayard & Mºlver. !
The charter-party lets the vessel, engages to receive the cargo
to proceed with the first fair wind, and to deliver, &c. (excepting
always “restraints of princes, and rulers,”) for which the
freighters covenant to pay, &c.; the owner to allow 45 running
days, for loading and delivery: and to receive demurrage at the
rate of 10 guineas per day. The letter of 3d of March, 1813,
forbidding Wilson to send the ship to sea, “under existing cir-
cumstances,” was exhibited in evidence.
The answer admits the contract, &c., but alleges, that before
she proceeded to sea, the blockade commenced. The ship was
provided with a Sidmouth license, but the blockade embraced
such vessels, as well as others, which fact became notorious, by
the sending back of such vessels.
Upon these facts, the plaintiff claims the full freight, as if the
voyage had been performed, because he was stopped by the
agent of the defendants, when ready to proceed upon it. If this
be not allowed, then he claims compensation for his labour and
expenses, performed and incurred at the request, and by the
direction of the defendants.
The defendants insist, that they are responsible for nothing :
that the plaintiff has not entitled himself to freight, because the
voyage was not even commenced ; and because, the whole con-
tract was rendered so illegal, by the British license, with which
the ship was furnished, that neither party can recover under it.
The Woodrop Simms was furnished with a license, granted by
the British government, then at war with the United States, to
protect her in the voyage, mentioned in the charter-party. It is
not denied, that if, by contract, Wilson had expressly stipulated,
that the vessel should sail under the protection of such a license,
the charter-party would have been vitiated, and the plaintiff
would have been incapable of recovering on it.(1) But it is in-
(1) See Patton v. Nicholson, 3 Wheat. 204. Action of assumpsit for $750,
for the sale of a certain paper, called a Sawyer’s license, to which the defendant
pleaded non-assumpsit. Evidence offered to the jury, to show, that both parties
were citizens of the United States, and that the license was sold by the plaintiff, to
Vol. I.-3 L
450 VIRGINIA.
Wilson v. Le Roy, Bayard & M*Iver.
sisted, that the fact of the license being on board, did not con-
taminate the charter-party, which contains no stipulation respect-
ing it, nor annul the contract of which it is not an ingredient;
the more especially as the voyage had not commenced, and the
owner of the vessel might have parted with the license before
she sailed.
the defendant, in Alexandria, D.C., to be used for the protection of the schooner
Brothers, an American vessel, during the war, against enemy’s vessels, on a
voyage from Alexandria, to St. Bartholomews, to be cleared out for Porto Rico.
MARSHALL, C. J., said, that the opinion of the Court was, that the use of a
license or pass, from the enemy, by a citizen, being unlawful, one citizen had no
right to purchase of, or sell to, another, such a license, or pass, to be used on
board an American vessel.
“In the several cases during the late war, of The Julia, 8 Cranch, 181; the
Aurora, Id. 203; The Hiram, Id. 444; S. C., 1 Wheat. 440; and The Ariadne,
2. Wheat. 143, the court determined, that the use of a license, or passport of
protection, from the enemy, constitutes an act of illegality, which subjects the
property sailing under it, to confiscation in the prize court. The act of the 2d Aug.
1813, ch. 585, and of 6th July, 1812, ch. 452. § 7, prohibiting the use of.
licenses, or passes, granted by the authority of the government of the United
Kingdom of Great Britain and Ireland, repealed by the act of 3d March, 1815,
ch. 766, were merely cumulative upon the pre-existing law of war. [The Saun-
ders, 2 Gallis, 210.] It follows, as a corollary from this principle, that a contract
for the purchase or sale, of such a license is void, as being founded upon an ille-
gal consideration. That no contract whatever, founded upon such a considera-
tion, can be enforced in a court of justice, is a doctrine familiar to our jurispru-
dence, and was, also, the rule of the civil law. It is upon the same principle,
that every contract, whether of sale, insurance, or partnership, or growing out
of a commercial intercourse, or trading with the enemy, is void. Thus, it has
been held by the supreme court of New York, that a partnership, between per-
sons, residing in two different countries, for commercial purposes, is, at least,
suspended, if not ipso facto determined, by the breaking out of war between
those countries; and that, if such partnership expire by its own limitation, during
the war, the existence of the war, dispenses with the necessity of giving public
notice of the dissolution. Griswold v. Waddington, 15 Johns. Rep. 57.” Mr.
Wheaton's note (a) to Patton v. Nicholson, supra. A vessel and cargo, which
is liable to capture, as enemy's property, or for sailing under the pass, or license
of the enemy, or for trading with the enemy, may be seized, after her arrival, in
a port of the United States, and condemned as prize of war. The delictum is
not purged, by the termination of the voyage. The Caledonian, 4 Wheat. 100;
4 Con. Rep. Sup. Ct. U. S., 401,–LEditor.]
MAY TERM, 1820. 451
*-*-eal--sº-º-º-º-º-º
Wilson v. Le Roy, Bayard & M*Iver.
This argument assumes a fact upon which its whole force
depends. It is, that the license was not an ingredient in this
contract. It is true, it is not mentioned in the charter-party.
But if the consideration be contrary to law, it is not necessary
that such illegal consideration should be expressed in the instru-
ment. It may be pleaded and shown in evidence.
That this Sidmouth license did form an ingredient in the
contract, that the plaintiff would have failed in his engagement,
and, supposing the contract to sail under the protection of a
license to be legal, would have been responsible in damages, had
his vessel sailed without such protection during the war, is, I
think, satisfactorily proved.
The contract itself, and the circumstances under which it was
made, would go far in preparing us to believe the well and mu-
tually understood views of the parties. I will not undertake to
say what influence this mutual understanding might have been
entitled to, had it not been communicated by the parties to each
other; but if it was communicated, if the plaintiff declared, that
his vessel was furnished with such a license, and the defendants
chartered her on that declaration, the plaintiff was bound to
make his vessel such as he described her to be, at least, so long
as the license was material. I think the testimony shows, that
these reciprocal communications were made by the parties.
The defendants were about to make a voyage which required a
British license, and a license for a particular port. They would,
of course, inquire for a vessel furnished with such a license, and
their inquiries would be answered, by any person disposed to
make the contract, that his vessel was so furnished.
The letter from Robert Pollard to James Dykes & Co.,
authorizing the transaction on the part of his friends in New
York, dated January 25th, 1813, contains these expressions: “I
will thank you to charter a good vessel that will take from 3500
to 4000 barrels for Cadiz, if practicable, at a rate not higher
than $2 75 a $3 per barrel, having a Sidmouth license; but
if this cannot be done, to take up one for Lisbon, having such a
license.” In a letter, dated the 30th of the same month, James
452 VIRGINIA.
—-rº-
Wilson v. Le Roy, Bayard & Mºſver.
Dykes & Co., referring to a previous letter, say, “Dickson
lately failed in exchanging his Sidmouth license to Lisbon, for
one to Cadiz; in consequence, we have chartered the “Wood-
rop Simms,” to load flour for you to Cadiz, at $3 per barrel, &c.
Her Sidmouth is dated the middle of August, which made her
owner, Mr. George Wilson, very tenacious about time.”
The charter-party is dated the 31st of January, and is execut-
ed by James Dykes & Co., for Robert Pollard, agent for Le
Roy, Bayard & M*Iver. Wilson, therefore, must be supposed
cognizant of the authority, under which Dykes & Co. acted ;
and that authority contains the instruction to charter a vessel,
furnished with a Sidmouth license, for Cadiz.
These papers, with the circumstances under which the con-
tract was made, circumstances which, in themselves, are testi-
mony never to be disregarded, prove, I think, that the possession
of the Sidmouth license, was communicated, and was the in-
ducement to the contract. If so, it has the same influence, as
if it had been mentioned in the charter-party, so long as it was
on board, and as it was material that it should be on board.
It has been insisted for the plaintiff, that, admitting the testi-
mony to prove the fact, it is not alleged in the pleadings, and
the proof must, therefore, be disregarded. -
It is undoubtedly true, that a decree must be according to the
allegations, as well as the proofs in the cause ; but it is not ne-
cessary, that every circumstance attending a general fact, should
be minutely alleged. In this case, the defendants say that the
vessel was provided with a Sidmouth license, but do not aver,
that this license formed an ingredient in the contract. If I
should be of opinion, that the defendants could not, on this ac-
count, avail themselves of this defence, and that, in consequence
thereof, the plaintiff would be allowed to claim the whole freight
agreed on in the charter-party, so that the real justice of the
cause would be defeated, I would certainly permit them to
amend their answer on equitable terms; but not to amend it, so
as to defeat the justice of the case. But I do not now think this
part of the case material, because the blockade, having been im-
MAY TERM, 1820. 453
Wilson v. Le Roy, Bayard & Mºſver.
posed and declared, after the charter-party was signed, I do not
think, the letter of the 3d of March, 1813, gave Wilson any
right to claim freight, on the principle, that the voyage was ar-
rested by Le Roy, Bayard & MºIver. The blockade justified
their interference. And as the voyage was never made, and the
freight never earned, the owner of the vessel cannot recover on
the charter-party, whether the parties to that instrument were
bound by it or not. But as the view I take of the effect of the
charter-party, has some influence on those circumstances, on
which the decision of this Court may depend, I will observe,
that in that contract there was nothing morally wrong.(2) It
is annulled by the law, upon principles of policy; and this ope-
ration of the law upon it, was unknown to the best informed
among us, until the decision was made in the supreme court of
the United States.(3) The parties, therefore, are, in fact, inno-
cent. The contract was made with a belief that it was valid, and,
therefore, I think, that although it could not have been enforced,
it will not infect and vitiate any other contract between the par-
ties. On the 3d of March, the defendants forbade the “Wood-
rop Simms” to proceed to sea, and afterwards, on the 19th of
June, she was ordered by them, to continue ready to prosecute
the voyage, so soon as the blockade should be removed, which,
the letter says, was daily expected. The expenses, then, which
were incurred, and the services which were rendered, perhaps,
from the 3d of March, certainly from the 19th of June, were
incurred and rendered by the direction of the defendants. Had
the defendants, on understanding that the license would not pro-
tect the Woodrop Simms, from the effect of the blockade, allowed
her owner to land his cargo, he might have employed his vessel,
perhaps, in the bay navigation ; certainly he would have been
liberated from all the extra expenses of retaining his vessel in a
state of preparation for sea.
While things were in this uncertain state, a proposition was
made by Wilson, to vacate the contract, and abandon the voy-
(2) The George, 1 Mason, 24.—[Editor.]
(3) See cases cited in note (1) ante, p. 449, 450,—[Editor.]
454. VIRGINIA.
Wilson v. Le Roy, Bayard & Mºver.
age, on certain terms, which are stated generally, but as the
proposition itself, is not before the Court, they cannot be parti-
cularly stated. This proposition was not accepted, but after-
wards, on the 11th day of January, 1814, a proposition to
abandon the voyage, was made on the part of the defendants,
who demanded the delivery of the flour, offering to abide by the
decision of a court. On this letter, the flour was delivered, and
upon this part of the transaction, the claim of the plaintiff, in
my opinion, rests.
He was in possession of the cargo, and had a right to hold
that possession until he could perform his voyage. Whether he
performed this voyage, with or without the license, he could
have retained the flour at Cadiz, until the freight was paid. If
the blockade should be of equal continuance with the war, he
might at the expiration of the war, have made the voyage with-
out the license; and I am not prepared to say, that in that case
he might not have recovered the stipulated freight, even on the
charter-party. In the mean time, the cargo might be, and, proba-
bly, would have been, totally lost to the defendants.
These advantages were given up with the flour. It could not
have been expected by either party, that they should have been
given up for nothing. The fair construction then of the con-
tract, under which the flour was restored to the defendants, is, I
think, that some equitable compensation should be made, with a
view to all the circumstances of the case. This is rather a
fit subject for the consideration of the parties themselves, or of
friendly arbiters, than of a court. It is a case of hardship, and
of loss on both. Each ought to concede something. If the
court must decide it, I am not certain what will be my ultimate
decision, but I shall now direct an account to be taken, of the
expenses incurred by Wilson, from the date of the charter party,
to the time of restoring the flour, stating separately those which
were incurred, in taking the cargo on board, and prior to March
3d, 1813, those which were incurred between the 3d of March,
and 19th of June, and those which were incurred after the 19th
of June.
MAY TERM, 1820. 455
Wilson v. Le Roy, Bayard & Mºſver.
In addition to this report, I could wish to be informed how
cases of this character have been generally settled by the parties.
June 7th, 1820, the order of the court was as follows: “ This
cause came on, &c. On consideration whereof, the court doth
direct an account to be taken by one of its commissioners, of the
expenses incurred by the plaintiff, from the date of the charter
party, in the proceedings mentioned, to the time of restoring the
flour, the cargo of the Woodrop Simms, by the plaintiff, to the
defendants Moses Myers & Son, stating separately those which
were incurred in taking the cargo on board, and to the 3d March,
1813, those which were incurred between the 3d March, and
the 19th June, 1813, and those incurred after the said 19th June,
which account he is directed to report to the court, &c.”
In obedience to this order, commissioner John Cowper, made
a report of the expenses incurred by the plaintiff, during the
three periods specified in the order. The expenses incurred from
the date of the charter-party, to the 3d March, amounted to
$1943 24 cents. This however included “ the cost of a Sid-
mouth license, $1000 :” those incurred for the second period,
amounted to $633 50 cents: and those after the 19th June, to
$359 52 cents, making the aggregate sum of $2936 26 cents,
principal. He also calculated the interest on those respective
sums, from the 3d March, the 19th June, and 31st July, 1813,
to 3d December, 1820, the time of the report, making an ag-
gregate of principal and interest of $4281 98 cents. The
court rejected the charge for the Sidmouth license, and the inter-
est on it amounting to $1465, and rendered a decree for the
balance.
9th June, 1821, MARSHALL, C. J. without expressing any
further opinion, directed the following decree to be entered.
“This cause came on to be finally heard on the papers formerly
read, and on the report of the commissioner, and was argued by
counsel. On consideration whereof, the court, disapproving of
so much of the report, as allows one thousand dollars for the
Sidmouth license, with interest thereon, and approving the resi-
456 VIRGINIA.
Anderson & Wilkins v. Tompkins et al.
–º.
due thereof, doth adjudge, order, and decree that the defendants
do pay to the plaintiff, the sum of two thousand, eight hundred
and sixteen dollars, ninety five cents, and his costs by him about
his suit in this behalf expended.”
ANDERson & WILKINS v. ToMPKINs ET AL.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
One partner has a right to convey the partnership effects, (other than real estate)
to the creditors of the firm, in payment of their debts, either to the creditors
directly, or through the intervention of trustees, and if the transaction be bona
fide, the deed will not be set aside, although the consent of the other partner
was not obtained.
Where all the partners of a mercantile firm are present, they have a right to be
consulted in giving a preference to particular creditors, but this necessity is
dispensed with, if one of the partners is absent in a foreign country.
The doctrine that a partner cannot bind his copartner by a deed, does not apply
in a case in which the property purported to be conveyed by the deed, is of
such a description, that a title to it passes by the mere act of delivery. The
mere circumstance of annexing a seal to the instrument of conveyance, in such
a case, does not annul a transfer so consummated.
If real property is conveyed to a firm, or to partners in trust for a firm, the mem-
bers of the firm are tenants in common, and neither party can convey more
than his undivided interest in the subject.
An assignment by deed of partnership debts, which are assignable at law, exe-
cuted by one of the partners only, though void at law, will be sustained in
equity, if it appear that the assignment was made with the bona fide inten-
tion of securing the creditors of the firm.
The book debts of a merchant are not assignable at law, and a deed executed
by one member of a mercantile firm, purporting to convey such debts, does not
pass the legal title. At law, the assignment is only a power to collect, and ap
MAY TERM, 1820. 457
Anderson & Wilkins v. Tompkins et al.
propriate the debts, which is revocable. So far as collections were made under
it, before revocation, the title to the money is in the trustees named in the deed.
Such a power to collect, is a contract that could not be enforced at law, but will
be sustained in equity, and have preference to any subsequent assignment by
the other partner, as the prior equity must prevail in a contest between mere
equities. - - *
THE complainants, merchants and partners, subjects of the
King of Great Britain, filed their bill in this Court, alleging,
that they were creditors of John Tompkins and Adam Murray,
late partners in trade, residing in the city of Richmond, and
state of Virginia, under the firm of Tompkins & Murray, to the
amount of £715 13s. sterhing : that on or about the 28th day of
April, 1819, Adam Murray, one of the partners, embarked for
Europe; and on the 8th day of May following, John Tomp-
kins, the other partner, without (as was alleged) the knowledge
or consent of Adam Murray, executed a deed, of that date, to
Nicholas Anderson & Tompkins, citizens of Virginia, purport-
ing to convey to them, not only all the partnership effects, real
and personal, of Tompkins & Murray, but also the separate
property of Adam Murray, upon trust ; 1st, for the benefit of
Sutherland, Colquhoun & Co. and Samuel Christian, all of them
citizens of Virginia ; and, 2dly, for the benefit of such of the
creditors of Tompkins & Murray, resident within the United
States, as should within sixty days, and of such of them, resident
elsewhere, as should within six months from the date of the
publication of the trust, by the trustees, exhibit their claims:
that prior to the execution of this deed, Tompkins & Murray pur-
chased several lots of ground in the city of Richmond, and
certain tracts of land in the state of Virginia: that Adam Murray
was proprietor, also, of another lot of ground in the city of
Richmond, in his own right, of a share of a tract of land in the
state of Kentucky, of a tract of land in Illinois, and of sundry
other articles of household furniture, and other personal estate
in Virginia : that subsequent to the execution of the said deed of
trust, the partnership was dissolved, and after the dissolution,
Adam Murray, who has never returned to Virginia, executed
VoI. I.-3 M
458 VIRGINIA.
Anderson & Wilkins v. Tompkins et al.
several deeds, bearing date the 10th of November, 1819, conveying
all his moiety of the partnership effects, both real and personal,
of Tompkins & Murray, and the whole of his own individual pro-
perty, in Virginia, to James Dunlop, of London, in trust for the
benefit, 1st, of James and John Dunlop, to secure a debt due
from the firm of Tompkins & Murray; 2dly, in satisfaction of
a debt due from the same firm to Leslie & M*Indoe ; and, 3dly,
to secure the debt due to the complainants, Anderson & Wilkins.
This suit was instituted for the twofold purpose of esta-
blishing the deed of the 10th of November, 1819, executed in
England, by Adam Murray, and to set aside the deed of the
8th of May, 1819, executed by John Tompkins. The validity
of the last mentioned deed was contested, as well as to the
complainants, and the other creditors of Tompkins & Murray,
who failed to exhibit their claims within the time prescribed
therein, as to Adam Murray, on several grounds: 1st, it W3S
contended, that during the existence of the firm, Tompkins
could not, without authority from Murray, dispose of the part-
nership effects, or any part thereof, by deed: 2dly, that the
deed was void, because it gave a preference to Colquhoun & Co.
and Christian, to all other creditors, without consulting with
Murray : 3dly, that it was void, because it purported to convey
the separate property of Murray, over which Tompkins had no
control. -
On the 12th June, 1820, the following opinion was delivered
by
MARSHALL, C. J.-This suit is brought to establish a deed,
made by Adam Murray, a partner of the house of Tompkins &
Murray, in November 1819, while in England, conveying his
moiety of the property of that house, to certain creditors of the
firm.
On the 29th of April, 1819, Murray had embarked for Eng-
land, leaving all the effects of the company in the hands of John
Tompkins, the partner remaining in this country, who continued,
for a short time, to conduct the business of the concern. The
MAY TERM, 1820. 459
, Anderson & Wilkins v. Tompkins et al.
pressure of their affairs was such, that in May, the house stopped
payment, and Tompkins, for himself and his partner, conveyed
all the effects of the company, and also the separate property of
himself and partner, to trustees for the payment, first, of certain
creditors named in the deed, and then of those who should bring
in their claims, the American creditors within sixty days, the
foreign creditors within six months. As the deed under which
the plaintiffs claim, can operate on that property only, which is
not conveyed by the first, it will be proper, first, to inquire into
the legal extent of the deed made by Tompkins. --
That deed, as has been already stated, purports to convey the
whole property of the concern, and the private property of the
partners. That property, consisted of the effects of the partner-
ship for sale, of real property, and of debts. I shall consider
the deed in its application to each of these subjects.
First.—The goods in possession for sale.
The convenience of trade requires, that each acting partner
should have the entire control and disposition of this subject.
It would destroy copartnerships entirely, if the co-operation of
all the partners were necessary to dispose of a yard of cloth. It
is, therefore, laid down, in all the books which treat on commer-
cial transactions, that with respect to all articles to be sold, for
the benefit of the concern, each partner, though the others be
within reach, has, in the course of trade, an absolute right to
dispose of the whole. “Each,” says Watson, “has a power to
dispose of the whole of the partnership effects.” This is a gene-
ral rule, resulting from the nature of the estate, and from the
objects for which men associate in trade. They are joint tenants,
without the right of survivorship, they are seized per mi et per
tout, and they associate together, for objects which require that
the whole powers of the partnership should reside in each part-
ner, who is present and acting.
These general doctrines are universal, and have not been con-
troverted in this case ; but it is contended, that they do not au-
thorize the deed made by Tompkins, because, 1st. This is not
460 VIRGINIA.
Anderson & Wilkins v. Tompkins et al.
an act in the course of trade, but is a disposition of the whole
subject, and a dissolution of the partnership.
2d. It is a preference to particular creditors, in making which,
Murray ought to be consulted. - f
3d. It is by deed.
It will be readily conceded, that a fraudulent sale, whether
made by deed or otherwise, would pass nothing to a vendee
concerned in the fraud. But, with this exception, I feel much
difficulty in setting any other limits to the power of a partner,
in disposing of the effects of the company, purchased for sale.
He may sell a yard, a piece, a bale, or any number of bales.
He may sell the whole of any article, or of any number of arti-
cles. This power would certainly not be exercised in the pre-
sence of a partner, without consulting him ; and if it were so
exercised, slight circumstances would be sufficient to render the
transaction suspicious, and, perhaps, to fix on it the imputation
of fraud. In this respect, every case must depend on its own
circumstances. But with respect to the power, in a case per-
fectly fair, I can perceive no ground, on which it is to be ques-
tioned. -
But this power, it is said, is limited to the course of trade.
What is understood by the course of trade 2 Is it that which is
actually done every day, or is it that which may be done, when-
ever the occasion for doing it presents itself? §
There are small traders who scarcely ever, in practice, sell a
piece of cloth uncut, or a cask of spirits. But may not a partner
in such a store, sell a piece of cloth, or a cask of spirits P His
power extends to the sale of the article, and the course of trade
does not limit him as to quantity. So with respect to larger
concerns. By the course of trade, is understood, dealing in an
article in which the company is accustomed to deal ; and deal-
ing in that article for the company. Tompkins & Murray sold
goods. A sale of goods was in the course of their trade, and
within the power of either partner. A fair sale, then, of all or
of a part of the goods, was within the power vested in a partner.
This reasoning applies with increased force, when we consi-
MAY TERM, 1820. 461
Anderson & Wilkins v. Tompkins et al.
der the situation of these partners. The one was on a voyage
to Europe, the other in possession of all the partnership effects
for sale. The absent partner could have no agency in the sale
of them. He could not be consulted. He could not give an
opinion. In leaving the country, he must have intended to
confide all its business to the partner who remained, for the
purpose of transacting it.
Had this, then, been a sale for money, or on credit, no person,
I think, could have doubted its obligation. I can perceive no
distinction in law, in reason, or in justice, between such a sale
and the transaction which has taken place. A merchant may
rightfully sell to his creditor, as well as for money. He may
give goods in payment of a debt. If he may thus pay a small
creditor, he may thus pay a large one. The quantum of debt,
or of goods sold, cannot alter the right. Neither does it, as I
conceive, affect the power, that these goods were conveyed to
trustees to be sold by them. The mode of sale must, I think,
depend on circumstances. Should goods be delivered to trus-
tees, for sale, without necessity, the transaction would be
examined with scrutinizing eyes, and might, under some cir-
cumstances, be impeached. But if the necessity be apparent, if
the act is justified by its motives, if the mode of sale be such as
the circumstances require, I cannot say, that the partner has
exceeded his power.
This is denominated a destruction of the partnership subject,
and a dissolution of the partnership. But how is it a destruc-
tion of the subject P Can this appellation be bestowed on the
application of the joint property, to the payment of the debts of
the company 2 How is it a dissolution of the partnership 2 A
partnership, is an association to carry on business jointly. This
association may be formed for the future, before any goods are
acquired. It may continue after the whole of a particular pur-
chase has been sold. But either partner had a right to dissolve
this partnership. The act, however, of applying the means of
carrying on their business to the payment of their debts, might
462 VIRGINIA.
Anderson & Wilkins v. Tompkins et al. :
suspend the operations of the company, but did not dissolve the
contract under which their operations were to be conducted.
Second.—It is said that Murray had a right to be consulted,
on giving a preference to creditors. It is true, Murray had a
right to be consulted. Had he been present, he ought to have
been consulted. The act ought to have been, and probably
would have been, a joint act. But Murray was not present.
He had left the country, and could not be consulted. He had,
by leaving the country, confided every thing which respected
their joint business to Tompkins ; who was under the necessity
of acting alone.
Third.—It is said, this transfer of property is by a deed, and
that one partner has no right to bind another by deed. For this
a case is cited, which I believe has never been questioned in
England, or in this country. [Harrison v. Jackson et al. 7 Durnf.
and East, 207.] -
I am not, and never have been, satisfied with the extent to
which this doctrine has been carried. The particular point
decided in it, is certainly to be sustained on technical reasoning,
and perhaps ought not to be controverted. I do not mean to
controvert it. That was an action of covenant on a deed ; and if
the instrument was not the deed of the defendants, the action
could not be sustained. It was decided not to be the deed of
the defendants, and I submit to the decision. No action can be
sustained against the partner, who has not executed the instru-
ment, on the deed of his copartner. No action can be sustained
against the partner, which rests on the validity of such a deed,
as to the person who has not executed it. This principle is set-
tled. But I cannot admit its application in a case where the
property may be transferred by delivery, under a parol contract.
Where the right of sale is absolute, and the change of property
is consummated by delivery. I cannot admit that a sale, so con-
summated, is annulled by the circumstance that it is attested by,
or that the trusts under which it is made, are described in a deed. *
No case goes thus far ; and I think such a decision could not
be sustained on principle.
MAY TERM, 1820. 463
Anderson & Wilkins v. Tompkins et al.
The power of applying all the goods on hand for sale, to the
payment of the partnership debts, is, I think, a power created
by the partnership, and the exercise of it must be regulated by
circumstances. In extraordinary cases, an extraordinary use of
power must be made. What is called the course of trade, is not
confined to the most usual way of doing business, in the usual
state of things. In the absence of one of the partners, in a case
of admitted and urgent necessity, the power to sell may be ex-
ercised by the partner, who is present, and who must act alone, in
such manner as the case requires, provided it be exercised fairly.
In this case, the fairness of the transaction is not impeached, and,
certainly, upon its face, it is not impeachable.
So far, then, as respects the partnership effects which were
delivered, I have never, from the first opening of the cause, en-
tertained a moment’s doubt.
Second.—The next subject to be considered is, the real pro-
perty comprehended in this deed.
Real property, whether held in partnership, or otherwise, can
be conveyed only by deed, executed in the manner prescribed
by statute. This deed can convey no more title at law, than is
in the person who executed it. Property conveyed to a firm, or
to partners in trust for a firm, is held by them as tenants in
common, and neither party can convey more than his undivided
interest.(1) *
In this case, where the legal estate was in Tompkins, the
whole property passes at law, by his deed. Where the legal
estate was in Murray, the whole property passes at law, by his
deed. Where the legal estate was in Tompkins & Murray, the
property passes in moieties, by their several deeds. I do not
think that the superior equity of either party is such, as to control
the legal estate, or the disposition made by law of the subject.
Where the legal estate is in trustees, for the use of Tompkins
& Murray, the title does not pass at law by either deed, and I
(1) This principle is laid down in Deloney v. Hutcheson et al., 2 Rand. 183.
—[Editor.]
464 VIRGINIA.
Anderson & Wilkins v. Tompkins et al.
have greatly doubted, whether the first deed ought not to be
preferred. I have, however, come to the opinion, that this trust
ought to follow the nature of the estate at law, and where the
trustees have not conveyed before the subsequent deed was exe-
cuted, that the title to this property, likewise, should pass in
moieties. .
The last subject to be considered, is, the debts due to the part-
nership. The right of one of the partners to assign debts
which are assignable at law, is admitted, provided that assign-
ment be made in the usual way.
The assignment, then, of these debts, is as valid a transaction as
the sale of goods on hand, if it be not contaminated by the seal.
I should not suppose, on the principle settled in 7 Durf. and
East, that an action could be maintained on this assignment.
But I am not satisfied that it does not pass the assignable paper,
which the partner had a legal right to assign. I rather think it
does.
A question of more difficulty respects the book debts. This
is a part of the subject on which I have entertained, and still
entertain, great doubts. The deed does not pass these debts at
law. They are not assignable at law, but they are assignable in
equity, and a court of equity sustains their assignment. At
law, the assignment is only a power to collect and appropriate;
and that power is revocable. So far as collections were made
under it, before it was revoked, I can have no doubt, that the
money collected was in the trustees. With respect to debts
not collected, I have felt great doubts. I consider the power
to collect, as a contract, which could not be enforced at law.
But as Mr. Murray could not convey this property at law, and
could only convey it in equity, I have supposed, that the
prior equity must be sustained, and that these debts, also, pass
by the deed of Tompkins. R
The opinion of the Court, then is, that the plaintiffs have a
right to a decree for a sale of all the real property contained in
the deed made by Adam Murray, the legal title to which was
in Adam Murray, and to a moiety of the real property, the
MAY TERM, 1820. 465
Anderson & Murray v. Tompkins et al.
title to which, was in Tompkins & Murray, or in trustees for
their benefit ; and that the residue of the property passes to the
trustees, in the deed executed by John Tompkins.(2)
(2) During the continuance of a mercantile firm, one of the partners, though
he is competent to bind, and does bind his own interest in the firm, cannot bind
his copartners, by a submission to arbitration. Karthaus v. Ferrer et al., 1 Peters's
Rep. 222. But see Buchanans v. Curry, 19 Johns. Rep. 137.
The question, how far one partner may bind his copartner, by an instrument
under seal, in equity, came under consideration in Sale v. Dishman’s Ex’ors.,
3 Leigh, 548. “Berryman v. Dishman” were partners in trade, though it was
proved, in fact, that Dishman had only permitted his name to be used in the firm,
to give Berryman credit, and Dishman had advanced money to Berryman, which
Dishman was to receive back, with interest, without regard to the profit or loss
of the trade. Berryman covenanted with Sale, for the purchase of corn, for
“Berryman & Dishman,” and Berryman, alone, signed and sealed the covenant,
in the name of “Berryman & Dishman;” but it was clear, that the firm was
looked to as debtors for the amount. TucKER, President, said: “The contract,
thus signed, and, (by mistake of received principles of law, which deny the right
of one partner, to bind another at law by a seal,) being sealed also, was, never-
theless, binding in equity upon both parties.” “In this case, then, the partners
were clearly bound by the original contract.” Decree accordingly.—[Editor.]
VoI. I.-3 N
©irtutit (&Otttt Of the ºſmitti'ſ $tattº,
VIRGINIA, NOVEMBER TERM, 1820.
BEFORE
Hon. JOHN MARSHALL, Chief Justice of the United States.
Rob ERTson v. MILLER ET AL.
B. M., W. B., and I. M., entered into articles of copartnery in 1803, to continue
in force for four years, which might be renewed by the joint consent of the
whole, given in writing, one year before the expiration of the term. By one
of the articles, it was stipulated, “that in case of the death, or bankruptcy of
any of the said parties, in order to prevent any altercation with the heirs,
executors, administrators, or assigns of the deceased, or bankrupt, the shares
of the profits, as well as capital of the deceased, or bankrupt, shall be paid by the
survivors, or solvents, agreeably to the yearly statements of the company's affairs,
prior to his death, or bankruptcy.” The first named partner, was an alien, and
W. B. was a citizen ; I. M., the third partner, also a citizen, died in 1807, and
the surviving partners settled with his representatives, and conducted the busi-
ness, without any new articles between themselves, but without any other
change in the circumstances, or in the expression of the terms of the origi-
nal articles, until December 1811, when W. B., the second named part-
ner, also died. During the partnership, the said W. B. had purchased a house
and lot in Lynchburg, with the funds, and for the benefit of the company, but
took the conveyance to himself. By his will, the said W. B., devised his
estate to his relations in Scotland, who are British subjects. By an act of the
legislature of Virginia, passed in February 1813, it was enacted, that if an alien,
NOVEMBER TERM, 1820. 467
Robertson v. Miller et al.
residing within the United States, and holding lands here, shall sell the same to
a citizen, before any proceedings, instituted by the escheator to escheat them,
the purchaser shall hold, and enjoy the same, saving the rights of other persons.
In November 1815, B. M., the surviving partner, being an alien, but a resident
here, sold the house and lot to R., a citizen, who paid the greater part of the
money, but becoming apprehensive that the property was escheatable, filed his
bill, praying, that if his title was good, the escheator might be enjoined from
proceeding, or if not, that B. M. might refund the purchase-money. Held:
1. That if there had been nothing peculiar in the articles of copartnery, the
said house and lot would have passed in moieties to the devisees of W. B., the
deceased partner, and to the surviving partner, subject to the title of the com-
monwealth, but chargeable with the debts of the firm, in the event of the per-
sonal fund being insufficient. 2. But that these articles substitute a new rule
for that, which the law would have made, if the parties had been silent; and
that, according to the true import of those articles, (alienage apart,) the whole
subject, real, as well as personal, passed to B. M., the surviving partner, he
being, however, bound to render to the representatives of W. B., the deceased
partner, his share of the capital and profits, according to the last yearly state-
ment on the books of the firm; and that on such shares being accounted for,
a court of equity would, if necessary, decree a conveyance of the house and
lot, to the said surviving partner. 3. That, although the time, for which the
articles of copartnery were formed, had expired, yet as the business was still
carried on, without any change in the circumstances, or in the expressions of
the articles, it was still conducted on its original principles, and was a con-
tinuing partnership. 4. That as the partner who purchased the lot, and the
partner who sold it, were aliens, it was escheatable; but as there were no pro-
ceedings instituted to escheat it, and it was sold to a citizen, the right of the
commonwealth was released by the act, although the estate of the surviving
partner was only an equitable one.
THE facts of this case, are so fully stated in the opinion of
the Court, that it is deemed unnecessary to make any other
statement of the bill, answers, and exhibits.
The following opinion was delivered by
MARSHALL, C. J.-William Brown, a citizen of Virginia,
and Boyd Miller, a British subject, entered into partnership, and
carried on trade and commerce, by the name of “William Brown
& Co.” . During the partnership, William Brown purchased a
house and lot in Lynchburg, with the funds, and for the benefit
of the company, but took the conveyance to himself. Some
al. 68 VIRGINIA.
Robertson v. Miller et al.
time in the year 1811, William Brown departed this life, having
first made his last will in writing, which was properly recorded
in February 1812; by which, after certain legacies, his estate
was devised to his relations in Scotland, who are British sub-
jects. By this devise, the interest of William Brown, in the
house and lot in Lynchburg, passes to the devisees, subject to
any claim Boyd Miller may have upon it, as surviving partner.
Boyd Miller became a resident of Virginia, and in November
1815, while a resident, sold the house and lot in Lynchburg, to
Archibald Robertson, the complainant, for $SOOO. A suit was,
at that time, depending in this Court, brought by the executors
of William Brown, against Boyd Miller & Others, to which
the devisees and legatees of William Brown, were afterwards
made parties, for a settlement of partnership transactions, and a
distribution of the partnership fund. In this suit, it is under-
stood, that the sum for which the house and lot in Lynchburg
sold, was considered as one item in the total amount of the
fund. Boyd Miller was decreed, as surviving partner, to pay
to the representatives of William Brown, the sum of $225,204
04, with interest, and, of course, became entitled to the partner-
ship effects.
Archibald Robertson, the purchaser of the house and lot in
Lynchburg, after paying the whole purchase-money, except
$1717 78, became apprehensive, that the property had become -
escheatable to the commonwealth, and that the title conveyed
to him, by Boyd Miller, was not a good one. Under this ap-
prehension, he has filed his bill, praying that the title may be
considered, that if it is a good one, the escheator may be en-
joined from instituting proceedings of escheat; and that, if it is
not a good one, Boyd Miller may be decreed to refund the
purchase-money, and may be enjoined from all proceedings to
collect the residue. -
The answer of Boyd Miller admits the several allegations of
the bill, and contends, that the proceeds of the said house and
lot have been rightly applied, under orders of this Court, to the
payment of partnership debts.
NOVEMBER TERM, 1820. 469
Robertson v. Miller et al
There has been no explicit direction of the court on this
subject, nor has any question on it ever before been made. The
only points decided by the court are, that the debts of the com-
pany should be paid, and that the residue of its property should
be divided according to the articles of copartnery which had
expired, but under which the parties had continued to act. This
question, therefore, is still open, and ought to be determined on
the principles which would have applied to it, had it been made
in November 1815. -
William Brown, having held the legal title to the property in
question, in trust for the firm, it will be considered, in a court
of equity, as if the conveyance had been made to the firm ; and
the inquiry will be, what is the operation of the law of escheat,
upon such property, where one of the partners is an alien P
If an alien merchant, who is alone, purchases a house and lot
for the purposes of trade, either in fee, or for life, that house
and lot are escheatable; and I can see no reason, if he be a mem-
ber of a firm, why his interest should not be escheatable. The
commercial law does not extend its protection to real estate,
acquired by alien merchants. The debts of the firm may attach
on his interest, as his own private debts would attach on his
own private estate, but no farther; that is, I presume, that what
remained after exhausting his personal, might charge his real
estate. This would, I presume, be the rule, in the case of an
estate at law ; and a court of equity, in the absence of peculiar
circumstances, would follow the rule of law.
In the lifetime of William Brown, a court of equity would
have subjected the interest of Boyd Miller, to the claim of the
commonwealth, chargeable, only, with such debts as the personal
fund of the company was insufficient to pay.
On the death of William Brown, the whole legal estate passed
to aliens, and became escheatable.
Would the property, if then escheated, have been chargeable
with the debts of the company 2 However this may be had
there been no other effects for the payment of debts, I know
of no law or principle which would subject this real property
470 * VIRGINIA.
Robertson v. Miller et al.
to the payment of debts, in exoneration of the personal fund.
In this view of the subject, the fact that the escheat has not
taken place, can make no difference. If a court of equity would
not interfere, to subject the proceeds of escheated land to the
payment of debts in exoneration of the personal fund, neither,
1 presume, would it interfere to order the sale of escheatable
land, and the application of the proceeds to the discharge of that
fund.(1) ºr
If, then, there was nothing peculiar in the articles of copart-
nership, the real estate, composing a part of the capital stock of
the firm, would, on the death of some of the partners, pass by
the will of the decedents, or go in moieties to the two partners,
subject to the title of the commonwealth, which, charged with
the payment of debts, would act on each moiety, according to
the law, as applicable to that party. . Both being aliens, both
moieties would be escheatable.(2) -
But it is contended by the defendants, that the articles of
copartnery, in this case, transfer the whole property to the
survivor,
The articles of copartnery were entered into on the 14th day
of April, 1803, between Boyd Miller, William Brown, and
(1) The act of assembly of Virginia, “ concerning escheators,” [1 R. C. of
1819, § 14, p. 297, provides, that where any person shall die indebted, seized of
lands which shall become escheated to the commonwealth, not having personal
property sufficient to pay such debts, the creditor may exhibit his petition,
before the court of the county or corporation in which the escheat takes place,
or in the superior court of law for such county, making the escheator a party
defendant; and the court shall proceed to judgment according to the right of the
case, and render the same for such sum as shall appear to be due to the petitioner.
[Editor.] 1.
(2) The form of expression here used, is somewhat ambiguous. The Chief
Justice clearly does not mean to say that both of the partners referred to were
aliens, for he had already stated that Brown was a citizen. The meaning of this
paragraph seems to be, either, that both moieties would be escheatable if both
partners were aliens: or, that JMiller, being an alien, and the moiety of Brown,
(himself a citizen,) having passed by his will to aliens, both moieties were in fact
escheatable, under the laws of Virginia, after the death of Brown.—[Editor.]
NOVEMBER TERM, 1820. 47 i
Robertson v. Miller et al.
John M'Credie, and were to continue in force for four years
from the 1st day of September, 1803, and might “be renewed by
the joint consent of the whole, in writing, given one year before
the expiration.” The books were to be balanced in the month of
September, in each year, and an inventory of all their effects,
with a true state of all their affairs, was then to be made out.
In the fourth article, it is agreed, that “in case of the death or
bankruptcy of any of the said parties, in order to prevent any
altercation with the heirs, executors, administrators, or assignees
of the deceased, or bankrupt, it is agreed, that the shares of the
profits, as well as capital of the deceased or bankrupt, shall be
paid by the survivors or solvents, agreeable to the yearly state-
ment of the company’s affairs, prior to his death or bank-
ruptcy,” &c. . *
It is very material to settle the extent of this article. If it
be an agreement, to transfer the real and personal estate of the
company, to the surviving, or solvent partner or partners, entitling
the representatives of the deceased, or the insolvent to “ his
share of the profits, as well as capital,” “agreeable to the
yearly statement of the company’s affairs, prior to the death or
bankruptcy,” then it is equivalent to an agreement, that the right
of survivorship shall take place between the parties, as to the
subject itself, giving the assignees of the bankrupt, or the repre-
sentatives of the deceased partner, his share of the capital, and
profits according to the last yearly statement, instead of that
interest to which, independent of special compact, he would be
entitled by law. It is the substitution of a rule, by the act of
the parties, for that rule which the law makes, where the parties
are silent.
After the best consideration I can give the subject, I am in
favour of this construction for several reasons. \
The article is professedly entered into, in order to prevent any
altercation with the heirs, executors, administrators, or assignees of
the deceased or bankrupt. This object cannot be effected, unless
the property be transferred to the survivors or solvent partners,
on the terms specified.
The rule for ascertaining annually the rights of the parties,
472 VIRGINIA.
Robertson v. Miller et al.
would be useless, if the application of that rule were to be de-
feated.
The article contains, also, other provisions, which demonstrate,
I think, the intent with which it was made, and show a deter-
mination to leave nothing for discussion in the event provided
for. Five per centum is, in this annual statement, to be deducted
from the cost, and charges of the goods on hand ; and no allow-
ance is to be made for bad or doubtful debts. These goods, then,
and these debts, become the property of the surviving or solvent
partner, and the representatives of the deceased, or assignees of
the bankrupt, are entitled, in lieu of all claims on the subject, to
the share allowed in the annual statement.
Is there any reason for withdrawing real estate, considered by
the company as a part of its stock in trade, from the operation
of this article 2 I can perceive no reason for the exception.
The parties certainly have not made it, and the court could not
be justified in doing what they have not chosen to do. Their
language shows an intent to comprehend lands. The word
“heirs” could be of no other use. To introduce the exception,
would defeat the object of the article. It would not only make
the word “heirs” useless, but would reinstate those subjects of
altercation, which the article intended to remove. The real
property must be withdrawn from the fund, its value ascertained
by some rule to be agreed on by the parties, or given by a court,
and the residue be subjected to the rule stated in the article.
This construction is strengthened by the understanding of the
parties, as illustrated by an event which has taken place.
John M'Credie, one of the partners, departed this life in the year
1807, and his account was adjusted by the rule, which has been
stated, without an idea on either side, that any other principle
ought to prevail; and the court of chancery of the state has, I
perceive by its decree directing a conveyance of the real estate
standing in his name, given this construction to the article.
I think, then, had the event which has happened, taken place
during the four years, for which the copartnership was originally
prepared, it could not be doubted that the whole fund of the
company, real and personal, would pass to the surviving partner;
NovKMBER TERM, isg0. 473
Robertson v. Miller et al.
Heaving the representatives of the deceased, entitled to their
testator’s share of the capital and profits of the company, accord-
ing to the annual statement on the books. Putting alienage out
of the question, I think it cannot be doubted that a court of equity
would, in such a state of things, decree a conveyance to Boyd
Miller, on his paying that share of capital and profits, -
It remains to inquire whether the expiration of the time, for
which the articles were formed, produces any alteration in the
law of the case ? I can perceive no reason for this opinion.
Where two or more persons enter into a particular business for a
stipulated time, under a special contract, and continue that busi-
ness after the expiration of the time, without any change what-
ever, in the circumstances, or any expression of the terms, on
which the business is conducted, the natural conclusion seems
to be, that the business is still to be conducted on its original
principles. The law, I think, would imply a contract, that it
should be so conducted. Many examples might be adduced in
illustration of this position. A tenant having a tenement for a
year, at a stipulated rent, and holding over with the consent of
the landlord, would be understood to hold under the original
contract. If, for some years, he paid the same rent, and it was
received by the landlord, the law would certainly raise a tacit
agreement, binding on both parties, so long as the occupation of
the land continued, without any dissent expressed by "either
party. So, with respect to the employment of an agent, or to an
engagement of any other description.
The testimony in the cause shows, that this general rule of
reason is understood to apply to commercial companies. It
also shows that the parties understood it, to be applicable to them.
Their declarations were to this effect, and their clerk proves that
the annual statement required by the articles, was regularly made,
and that the business continued to be conducted in the same
manner, and on the same principles, as before the expiration of
the articles.
This Court, in its decree in the original cause, without any
reference to the question of escheat, considered the articles as
Vol. I.-3 O
Robertson v. Miller et al.
regulating all the subsequent transactions of the parties, and
directed the settlement to be made in conformity with them.
That opinion is still retained. Its application to the case before
the court, will now be considered.
The property in question, though conveyed to William Brown
singly, having been purchased with the money, and held in trust
for the company, must be considered in a court of equity, as if
the trusts had been expressed, or as if the legal estate had in terms
conformed to the trust. As the property was acquired under
the articles of copartnership, the trust must accord with those
articles. The title then is to be considered as if the deed had
been made to the firm, and, if either of the partners should die,
or become bankrupt during the continuance of the partnership,
to the surviving partner, he paying to the representatives of the
deceased, or the assignees of the bankrupt partner, his share of
the capital and profits, including this property, as stated on the
the books at the last annual statement. Under such a limitation,
it cannot be doubted, that the lot would pass to the surviving
partner. . ‘.
But the surviving partner is an alien, and this property was,
therefore, while held by him, escheatable. Has the right of the
commonwealth been released ?
In 1813, the legislature passed an act, which was re-enacted
in 1819, which contains the following clause. “..And be it fur-
ther enacted, That, where any alien, residing within the United
States, holding, or claiming title to, any land, not heretofore
escheated to the commonwealth by an office found, shall have
ôona ſide sold, or demised the same, or shall have died testate,
or intestate, seized, or possessed thereof, or claiming title there-
to, and where any alien, residing within the United States, shali
hereafter hold, or claim title to any such land, and, before any
proceedings be instituted by the escheator, for the purpose of
escheating the same to the commonwealth, shall bona fide, sell
or demise the same, or die testate, or intestate, seized, or pos-
sessed thereof, or claiming title thereto; in every such case, the
purchaser from such alien, or his lessee, heir, or devisee, being
NOVEMBER TERM, 1820. 475
Robertson v. Miller et al.
a citizen of the United States, shall hold and enjoy such
land.” (3) 4.
Boyd Miller, in 1815, when this property was sold to the
plaintiff, was an alien, residing within this commonwealth, in
possession of, and claiming title to the land in question, which
had not then been escheated to the commonwealth, and the sale
is admitted to be bona fide. The case is within the letter of the
law, unless a distinction be taken between an equitable and a
legal estate. I can perceive no ground for such a distinction. A
court of equity will sustain the claim of the commonwealth, to
an equitable estate, held by an alien. Why, then, should not
the commonwealth release its right to an equitable, as well as to
a legal estate 2 And what good reason, founded in the princi-
ples of law, or of policy, can be assigned, for not releasing to a
citizen, the right of forfeiture in lands, of which he holds the
equitable title, the mere legal title being in a foreigner, under
circumstances, in which that right would be released, had the
legal title been conveyed? ;
I am entirely satisfied, that the legislature intended to release
the right of the commonwealth to all lands, held by an alien,
whatever his title might be, in every case in which that alien,
being a resident, sells to a citizen, before the right of the com-
monwealth has been asserted, and that the release is co-extensive
with the title of the alien. - -
I am, therefore, of opinion, that the commonwealth has re-
leased its title to the land, in the bill mentioned, and that the
title is valid in equity. -
Although, upon a fair construction of the will of William
Brown, I doubt, whether the legal estate would pass by it, to
his devisees, and am satisfied, that he did not intend it should
pass, it is proper, that they should release their right to the com-
plainant, and I shall direct them to do so. -
This Court has been under the necessity of considering, inci-
(3) See Rev. Code of 1819, vol. ii. App. III. ch. 16. § 3. p. 505; 1 R. C.
ch. 94. § 2. p. 354.—[Editor.]
476 VIRGINIA.
Robertson v. Miller et al.
dentally, the title of the commonwealth, but cannot bind that
, title, since the commonwealth cannot be made a defendant, either
by serving process on its escheator, or otherwise. Of that part
of the case, the court has no jurisdiction, and, therefore, the bill,
so far as it prays relief, against the escheator, is dismissed, with-
out prejudice.(4)
The following DECREE was entered on the 27th November,
1820.
•º
“This cause came on to be heard, on the bill, (which is taken
for confessed against the absent defendants, as to whom publi-
cation appears to have been made,) on the answers of Boyd
Miller, and of Samuel Garland, the escheator for the Corpora-
tion of Lynchburg, on the facts agreed, and on the exhibits, and
was argued by counsel : all which being considered, this Court
is of opinion, that on the true construction of the articles of co-
partnership, on which the business of William Brown & Co. was
conducted, the whole equitable title to the house and lot, in the
bill mentioned, vested, on the death of William Brown, in Boyd
Miller, the surviving partner, and was conveyed by him, to the
complainant, by the deed of the 11th of November, 1815. And
this Court is further of opinion, that Boyd Miller, being at the
time, an alien, residing in Virginia, and Archibald Robertson,
the purchaser of the said lot, being a citizen of the United States,
(4) As to the rights of aliens, see Dawson’s Lessee v. Godfrey, 4 Cranch, 321;
Hepburn et al. v. Dunlap et al., I Wheat. 197; Fairfax's Devisees v. Hunter's
Lessee, 7 Cranch, 603; Chirac v. Chirac, 2 Wheat. 259; Jackson v. Clark,
3 Wheat. 1 ; Craig v. Leslie et al., 3 Wheat. 563; Craig et al., v. Radford,
3 Wheat. 594; Orr v. Hodgson et al., 4 Wheat. 453; Blight's Lessee v. Roches-
ter, 7 Wheat. 535 ; M'Creery's Lessee v. Somerville, 9 Wheat. 354; Hughes et
al. v. Edwards, 9 Wheat. 48; Doe dem. Gouverneur’s Heirs v. Robertson et al. 3.
11 Wheat. 332; Carneal v. Banks, 10 Wheat. 181; Carver v. Astor, 4 Peters's
Rep, 1 ; Shanks et al. v. Dupont, 3 Peters's Rep. 242; Inglis v. Trustees of
Sailor's Snug Harbour, 3 Peters, 99; Lessee of Levy v. M'Cartee, 6 Peters's
Rep. 102; Breedlove et al. v. Nicolet et al., 413; Commonwealth o. Martin’s
Ex’ors, and Devisees, 5 Munf, 117; Hubbard v. Goodwin, 3 Leigh, 492–
[Editor.] -
NOVEMBER TERM, 1820. 477
Robertson v. Miller et al.
and no proceedings of escheat having taken place at the time,
the right of the commonwealth to the said property, is released
by virtue of the act of assembly, in that case made and provid-
ed. But as this Court has no jurisdiction, so far as the common-
wealth is concerned, and though obliged to decide incidentally
on its title, cannot bind it, the bill, as against Samuel Garland,
the escheator, as well as against Boyd Miller, is dismissed, with-
out prejudice. And this Court doth further decree, that the
absent defendants, [the devisees, and legatees of William Brown,
deceased, do release to the complainant, all their right in the
house and lot, in the town of Lynchburg, conveyed to the com-
plainant, by the deed of Boyd Miller aforesaid.”
Çittltit Cottrf of tige Jämitti) sº tattg.
VIRGINIA, MAY TERM, 1821.
IBEFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
DoN PABLO CHAcon, Consul of Spain, Libellant v. Eighty-nine
Bales of Cochineal. Don DIEGO CHAYToR, Claimant.
(Case of the Santissima Trinidad and the St Ander.)
The question, of prize or no prize 3 belongs exclusively to the courts of the cap-
tor; and in no case does a neutral assume the right of deciding it.
But offences may be committed by a belligerent against a neutral, in his military
operations, which it would be inconsistent with the neutral character to permit;
and which give to the other belligerent, the party injured by those operations,
claims upon the neutral which he is not at liberty to disregard. In such a .
situation, the neutral has a double duty to perform ; he must vindicate his own
rights, and afford redress to the party injured by their violation.
If the wrong-doer comes completely within the power of the neutral, the practice
of this government is, to restore the thing wrongfully taken.
Quare : If a native born American citizen can eacpatriate himself? If he can,
he divests himself, by the very act of expatriation, as well of the obligations, as
of the rights of a citizen. He becomes, ipso facto, an alien ; his lands are es-
cheatable, and the rights appertaining to citizenship, once lost, cannot be
ar
MAY TERM, 1821. 479
Case of the Santissima Trinidad and St. Ander.
recovered by residence, but he must go through the formula prescribed by law,
for the naturalization of an alien born. *
But whether the right of expatriation exists or not, an American citizen may,
under the modern usage of nations, enter either the land or naval service of a
foreign government without compromising the neutrality of his own, or divest-
ing himself thereby of his rights of citizenship.
The application of this general principle to the United States, is not affected by
our treaty with Spain. Admitting the capturing vessel to have been a pri-
vateer, commissioned by the enemy of Spain, and the captured vessels to have
been Spanish property : that a person (a native citizen of the United States.)
holding a commission to cruize under the enemy of that power, might be
deemed a pirate in the courts of the United States or Spain ; still, he would
not be so deemed by the rest of the world. Those two powers may bind
themselves by treaty, but cannot bind foreign nations; and, though that treaty
may affect the individual, (in the case supposed,) personally, it cannot affect
the prize. The enemy of Spain had the right, like all other sovereigns, to
grant the commission, and captures made under it, are as valid, and vest as
completely in the belligerent sovereign, under whose flag they were made, as
if the treaty between the United States and Spain had never been made.
Neutral rights are not violated by the grant of a commission to a neutral, while
within the territory of a belligerent.
A commission to cruize, granted in a time of profound peace, but in contem-
plation of war, may be used after war breaks out. It is sufficient to give
validity to captures made under it, that war existed at the time of the capture.
Quære : If a colony in a state of rebellion, and struggling to establish its inde-
pendence of the parent state, is embraced by the act of congress of 1794, pro-
hibiting the enlistment of soldiers, marines, and seamen, within the limits of the
United States, to enter the service of any foreign prince or state 2
However this may be, such a revolted colony, or section of a state, comes within
the more ample provisions of the law of nations: and while neutrals concede
to a people in such a situation, the character and rights of a belligerent, if they
are in a condition to make war, they are as much bound to refrain from a vio-
lation of the rights of neutrals, as if they were an acknowledged state.
It seems, that the public, current declarations of a crew, that a large portion of
them were enlisted for the cruize, in the United States, in a case where no
motives existed for previous combination; and the testimony of the master of
the captured vessel, that a portion of the crew spoke English, and that the mate
told him, that the vessel was equipped and fitted out in Baltimore, cannot be
entirely disregarded.
The principle has been well settled by the supreme court, that belligerent captures
by privateers, fitted out, armed, and manned within the United States, in viola-
tion of the neutrality of our government, and the act of congress, in such case
ty
480 VIRGINIA.
*
Case of the Santissima Trinidad and St. Ander.
provided, if they are brought within the powers of our courts, may be restored
by them to the injured belligerent. -
And the same principle is applicable to the national ships of a foreign sovereign,
whether the capture was made within the waters of the United States, or upon
the high seas, and brought within the jurisdiction of the federal courts. The
general principle is undeniable, that the national ship of a foreign sovereign,
coming within the United States, is exempted from the jurisdiction of the
United States, but this exemption is granted only on the condition that the
sovereignty of our government shall be respected : and the gross violation of
its neutrality by such foreign national ship, forfeits the condition, and subjects
her prizes, made in fact through neutral means, to restitution to the original
OWI 162F, t
THIS was a libel, originally filed in the district court of Nor-
folk, by the consul of Spain, in April 1817, against eighty-nine
bales of cochineal, two bales of jalap, and one box of vanilla,
formerly constituting part of the cargoes of the Spanish ships,
Santissima Trinidad and St. Ander, and alleged to be unlaw-
fully and piratically taken out of those vessels on the high seas,
by a squadron, consisting of two armed vessels, called the Inde-
pendencia del Sud, and the Altravida, and named and com-
manded by persons, assuming themselves to be citizens of the
United Provinces of the Rio de la Plata. The libel was filed,
in behalf of the original Spanish owners, by Don Pablo Chacon,
consul of his catholic majesty, for the port of Norfolk; and, as
amended, it insisted upon restitution, principally for three rea-
sons : 1st. That the commanders of the capturing vessels, the
Independencia del Sud and the Altravida, were native citizens
of the United States, and were prohibited by our treaty with
Spain of 1795, from taking commissions to cruize, against that
power. 2d. That the said capturing vessels were owned in the
United States, and were originally equipped, fitted out, armed
and manned in the United States, contrary to law. 3d. That
their force and armament had been illegally augmented within
the United States. -
A claim and answer was given in by James Chaytor, styling
himself Don Diego Chaytor, in which he asserted that he was
MAY TERM, 1821. 481
Case of the Santissima Trinidad and St. Ander.
the commander of the Independencia, that she was a public
armed vessel, belonging to the government of the United Pro-
vinces of Rio de la Plata, and that he was duly commissioned as
her commander : that open war existed between those provinces
and Spain : that the property in question was captured by him,
as prize of war, on the high seas, and taken out of the Spanish
ships, the Santissima Trinidad and the St. Ander, and put on
board of the Independencia : and that he afterwards, in March
1817, came into the port of Norfolk with his capturing ship,
where he was received and acknowledged as a public ship of
war, and the captured property, with the approbation and
consent of the government of the United States, was there
landed for safe keeping in the custom-house store. The claimant
admitted that he was a native citizen of the United States, and
that his wife and family had constantly resided in Baltimore;
but alleged, that in May 1816, at the city of Buenos Ayres, he
accepted a commission under the government of the United
Provinces, and then and there expatriated himself by the only
means in his power, viz: a formal notification of the fact to the
United States consul at that place. He denied that the capturing
vessel, the Independencia, was owned in the United States, or
that she was fitted out, equipped, or armed, or her force aug-
mented in the ports of the United States, contrary to law. He
denied, also, that the Altravida was owned in the United States,
or that she was armed, equipped, or fitted out, in the United
States, contrary to law ; or that she aided in the capture of the
vessel in question. He further asserted that the captured pro-
perty had been libelled, and duly condemned as prize in the tri-
bunal of prizes of the United Provinces, at Buenos Ayres, on
the 6th of February, 1818. He denied the illegal enlistment of
his crew in the United States; but admitted that several persons
there entered themselves on board as seamen, in December 1816,
representing themselves to be, and being, as he supposed, citizens
of the United Provinces, or in their service, and then transiently in
the United States : and that he refused to receive citizens of this
Vol. I.-3 P -
482 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
country, and actually sent on shore, some who had clandestinely
introduced themselves on board. .
It appeared, by the evidence in the cause, that the capturing
vessel, the Independencia, was originally built and equipped in
the port of Baltimore, as a privateer, during the late war be-
tween the United States and Great Britain, and was then rigged
as a schooner, and called the Mammoth, and was fitted out to
cruize against the enemy. After the peace, she was converted
into a brig, and sold by her original owners. In January 1816,
she was loaded with a cargo of munitions of war, by her
new owners, who were inhabitants of Baltimore, and being
armed with twelve guns, part of her original armament, she
was sent from that port, under the command of the claimant,
Chaytor, ostensibly, on a voyage to the north west coast of
America, but in reality to Buenos Ayres. By the written in-
structions given to the supercargo, on this voyage, he was au-
thorized by the owners, to sell the vessel to the government of
Buenos Ayres, if he could obtain a suitable price. She arrived
at Buenos Ayres, having committed no act of hostility, but
sailing under the protection of the United States flag, during the
outward voyage. At Buenos Ayres, the vessel was sold to the
claimant, and two other persons, and soon afterwards, in May
1816, assumed the flag and character of a public ship, and was
understood by the crew, to have been sold to the government of
Buenos Ayres ; and the claimant made known these facts to the
crew, asserting, that he had become a citizen of Buenos Ayres,
and had received a commission to command the vessel as a na-
tional ship, and invited the crew to enlist in the same service,
and the greater part of them accordingly enlisted. From this
period, the public agents of the government of the United
States, and other foreign governments, at that port, considered
the vessel as a public ship of war, and this was her avowed
character and reputation. No bill of sale to the government of
Buenos Ayres was produced, but the claimant’s commission from
that government was given in evidence. -
Upon the point of the illegal equipment and augmentation of
force of the capturing vessels in the ports of the United States,
MAY TERM, 1821. 483
Case of the Santissima Trinidad and St. Ander.
different witnesses were examined on the part of the libellant,
whose testimony was extremely contradictory ; but it appeared
from the evidence, and was admitted by the claimant, that after
the sale in Buenos Ayres, in May 1816, the Independencia de-
parted from that port, under his command, on a cruize against
Spain ; and after visiting the coast of Spain, put into Baltimore,
early in the month of October, in the same year, having then
on board, the greater part of her original crew, among which
were many citizens of the United States. On her arrival at
Baltimore, she was received as a public ship, and underwent
considerable repairs in that port. Her bottom was new coppered,
some parts of her hull was recaulked, part of her water ways
replaced, a new head was put on, some new sails and rigging, to
a small amount, and a new mainyard, were obtained ; some bolts
were driven into the hull, and the mainmast, (which had been
shivered by lightning,) was taken out, reduced in length, and
replaced in its former station. For the purpose of making these
repairs, her guns, ammunition, and cargo, were discharged,
under the inspection of an officer of the customs; and when
the repairs were made, the armament was replaced, and a report
made by the proper officer to the collector, that there was no
addition to her armament. The Independencia again left Bal-
timore, in the latter part of December 1816, having at that time
on board, a crew of 112 men ; and on or about the 8th of Fe-
bruary following, sailed from the Capes of the Chesapeake, on
the cruize, in which the property in question was captured.
During the stay of the Independencia at Baltimore, several per-
sons were enlisted on board her, and the claimant’s own wit-
nesses proved, that the number was about thirty.
On her departure from Baltimore, the Independencia was ac-
companied by the Altravida, as a tender or despatch vessel.
This last was formerly a privateer, called the Romp, and had
been condemned by the district court of Virginia, for illegal
conduct, and was sold under the decree of the court, together
with the armament and munitions of war, then on board. She
was purchased, ostensibly, for one Thomas Taylor, but imme-
484 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
diately transferred to the claimant, Chaytor. She soon after-
wards went to Baltimore, and was attached to the Independencia,
as a tender, having no separate commission, but acting under
the authority of the claimant. Some of her guns were mounted,
and a crew of about twenty-five men put on board at Baltimore.
She dropped down the Patuxent, a few days before the sailing
of the Independencia, and was there joined by the latter, and
accompanied her on her cruize. .
The district court, upon the hearing of the cause, decreed
restitution to the original Spanish owners, and from that sen-
tence, the claimant, Chaytor, appealed to this court.(1)
The following opinion was delivered by
MARSHALL, C. J.-It is universally admitted, that the ques-
tion of prize, or no prize, belongs solely to the courts of the
captor. In no case, does a neutral assume the right of deciding
it. But offences may be committed by a belligerent, against a
neutral, in his military operations, which the neutral ought not
to permit; and which give claims upon him, to the party injured
by those operations, which he is not at liberty to disregard. In
such a situation, the course to be pursued by the neutral, to assert
his own rights, and perform his duties, by affording redress to
the party injured by a violation of those rights, will vary with
varying circumstances. If the wrong doer comes completely
within his power, and brings that which will afford complete
redress for the wrong done, the usage of nations, generally, as
is believed, certainly the usage of this nation, is to restore the
thing wrongfully taken. This act vindicates the offended dig-
nity of the neutral, and gives to the injured party, the most
ample redress, perhaps, which is attainable, or can reasonably
be demanded. This ought to satisfy the sovereign, who claims
reparation from the neutral, for his involuntary instrumentality
in the war ; and ought to be submitted to, by the sovereign of
(1) The editor has adopted the accurate statement of Mr. Wheaton, in his
report of this same case; see 7 Wheaton, 283.-IBditor.]
MAY TERM, 1821. 485
Case of the Santissima Trinidad and St. Ander.
the offending party, whose duty it was, to restrain his officer
from violating the rights of a friendly government, or to punish
him for their violation. This usage, then, is recommended by
the strong consideration of convenience and effectiveness.
This principle having been adopted by the American govern-
ment, two questions arise in the case under consideration.
1st. Has the capturing vessel so violated the neutrality of the
United States, as to give this government the right, and impose
upon it the duty, of restoring to the original owners, when
brought within its power, the property which has been taken P
2d. By what department is this right to be exercised ? this
duty to be performed P
Many points have been raised on both sides, and supported
with great strength of argument, which on views, which might
have been taken of the subject, by the court, it would have been
necessary to consider and decide, but which, in the more narrow
view that has been taken, need not be considered fully, because
they are not necessary to the decision which will be made.
These points, therefore, will be noticed very cursorily. *
The right of Commodore Chaytor to make prizes, has been
denied ; because,
1st. He is an American citizen ; and,
2dly. His commission does not authorize him to wage war.
1. The commodore, though a native American, insists, that he
has expatriated himself, and has become a citizen of Buenos
Ayres.
I deem it unnecessary, in this case, to discuss the abstract
question of this alleged natural right to dissolve the connexion
between an individual and his country, and will only observe,
that the principle is often of more serious consequence to those
who would shield particular acts by its assertion, than they sup-
pose. The individual who divests himself of the obligations of
a citizen, if this be within the power of an individual, loses the
rights which are connected with those obligations. He becomes
an alien. His lands, if he has any, are escheatable. He cannot
recover these rights by residence, but must go through that
486 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
process which the laws prescribe for the naturalization of an
alien born. Would Commodore Chaytor wish to place himself
in this situation ? I decline inquiring whether he has done so,
because I think, that an American citizen may, according to
the modern usage of nations, engage in foreign service, without
compromising the neutrality of his government.
I do not perceive any solid distinction between the land and
naval service, in this particular. It is probable, that foreigners
have less frequently obtained commissions in the marine than in
the army; and for this it would not be difficult to account; but
in cases where the subjects of the nation are supposed to be
defective in maritime skill, as in the Russian service, foreigners
are not unfrequently engaged, - -
It has been supposed, that the application of this general
principle to Commodore Chaytor, is prevented by our treaty
with Spain. -
I do not think so; even admitting the Independencia del Sud
to have been a privateer, and admitting the construction of the
treaty, by the counsel for the libellant, to be right, (and I am
very far from assenting to it,) the treaty may affect the indi-
vidual, personally, but cannot affect the prize. Were it true,
that a person holding a commission to cruize under the enemy
of one of the contracting parties, might be prosecuted as a pirate,
in their courts, he would not be deemed a pirate by the rest of
the world. America and Spain may bind themselves, but they
cannot bind foreign nations. They cannot bind the republic, if
it be one, of Rio de la Plata. Pueyrredon had a right to grant
this commission at his city of Buenos Ayres; and the world
will respect it just as much as if the treaty between the United
States and Spain had never been made. As between the
government granting the commission, and the person to whom
it is granted, it is valid. Captures made under it, will be
deemed valid by that government, and by all foreign nations.
Such captures vest the prize in the belligerent sovereign, under
whose commission it was made ; and, however his prize acts, or
his edicts, may dispose of it afterwards, the world considers it as
MAY TERM, 1821. 487
. -
Case of the Santissima Trinidad and St. Ander.
his property, taken by himself. We may punish the instrument,
personally, if our law directs it; but this does not authorize us
to seize the property of a belligerent sovereign, taken jure belli.
The only principle on which this can be done, is, that our
neutral rights have been violated. Now, the grant of a commis-
sion to a neutral, while within the territory of a belligerent, has
never been considered as a violation of neutral rights.
2. Neither do I think, the objections to the commission have
been sustained. -
Admitting that Rio de la Plata was not at war with Spain
when it was granted, it is not doubted, that if a commission
be given in contemplation of war, or in time of profound
peace, that commission may be used when war shall break out.
War existed at the time of the capture, and that is sufficient for the
captor. The commission, in its terms, gives him the command .
of the Independencia, and so far as respects that vessel, is
equivalent to a general commission in the navy ; and the in-
structions authorize him to cruize, which term strongly indicates
hostile operations. But I think that a commission to command a
ship of war, authorizes the officer holding it, if not interdicted
by other circumstances, to attack and capture an enemy.
It has also been contended that this vessel, which was origi-
nally the Mammoth of Baltimore, has not been transferred, with
good faith, to the government of Rio de la Plata, but is, in truth,
the property of an American citizen. 3 -
The circumstances in support of this proposition, are certainly
entitled to consideration, although they do not outweigh the
positive testimony of the transfer. I shall therefore consider
the transfer as unimpeached. -
The Court is now brought to the inquiry, whether the neu-
trality of the United States has been violated by any equipment,
or augmentation of armament, or enlistment of seamen, within
their territory - . --
These acts are forbidden to a belligerent, by the law of na-
tions; and are also forbidden by an act of congress. -
I will put out of the case the equipment in Baltimore, in 1815,
488 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
for the voyage to Buenos Ayres, in January 1816, because I
think the subsequent sale of the vessel authorised the purchaser,
if unconnected with the original equipment, to make war upon
the enemies of her flag.
I will consider the transactions of Commodore Chaytor, after
his arrival in Baltimore, in October 1816, and will first inquire
whether he has enlisted any part of his crew, in violation of the
neutral character, and of the laws of the United States.
The act of 1794 enacts, “that if any person shall, within the
territory or jurisdiction of the United States, enlist or enter
himself, or hire, or retain, another person to enlist or enter him-
self, or to go beyond the limits, or jurisdiction of the United
States, with intent to be enlisted or entered, in the service of any
foreign prince or state as a soldier, as a marine, or seaman, on
board of any vessel of war, letter of marque or privateer,”
&c.(2) To this clause is added a proviso, which is understood
to authorize the enlistment of a transient foreigner to, serve on
board a ship of war of his own sovereign, not equipped or armed
within the United States. - -
The history of the day informs us, that this act was considered
as declaratory of the pre-existing law of nations, and was intended
to aid the executive in the enforcement of that law. However
serious may be the doubt, whether a section of a nation strug-
A gling for its independence, may come within the prohibitions of
the act, there can be no doubt that such a people come within
the more ample provisions of the law of nations. Whether
Buenos Ayres be a state or not, if she is in a condition to make
war, and to claim the character and rights of a belligerent, she is
bound to respect the laws of war; and the government which
concedes her those rights, is bound to maintain its own neu-
trality, unless it means to become a party to the war, as entirely
as if she were an acknowledged state. She has no more right
to recruit her navy within the United States, than Spain would
have, and this government is as much bound to restrain her
from using our strength in the war, as to restrain her enemy.
(2) I Story's Laws U.S. p. 352, ch. 50, § 2-[Editor.]
MAY TERM, 1821. 489
Case of the Santissima Trinidad and St. Ander.
therefore, Commodore Chaytor, has recruited any men within
the United States, not being the subjects or citizens of Rio de la
Plata, he has violated their neutrality. g -
The depositions of Henry, Irvine, and Pecker, are supposed
by the counsel for the claimant, to have no bearing on the case,
because they detail only what they have heard from others; and
I readily admit, that their testimony, standing alone, would not
be sufficient to establish the fact of an enlistment within the
United States, prior to the capture of the cochineal, mentioned
in the libel. But they prove, unequivocally, that Commodore
Chaytor did enlist American citizens, within the United States,
for his subsequent cruize; and certainly, positive evidence of
this fact, gives, in such a case as this, strong probability to other
evidence, which asserts, that the same fact took place, previous
to the preceding cruize. They prove also, the current declara-
tion of the crew, that a great number of them were concerned
in the preceding cruize, and were enlisted for that cruize, in the
United States. I feel some difficulty in totally disregarding
these declarations. The private communications of an indivi-
dual, would certainly be entitled to no consideration ; but the
public conversation of a ship’s crew, relative to the transactions
of a ship, in a case where no motives exist for previous combi-
nation, will give some belief.
Of the same nature, is the testimony of the master of the
captured vessel. He says, that the crew of the Independencia
spoke English, and that the second officer told him, they had
been equipped and fitted out in Baltimore.
The testimony of John Davis, is positive ; and, if true, esta-
blishes every thing for which the libellants contend. This wit-
ness is supposed to be discredited by others, who, in some
respects, are said to contradict him. Let us examine this
subject. -
Davis swears that he was born in New York, and that he
was enlisted in Norfolk, by Hooper, for the Independencia.
Currie swears that he is an Englishman, who deserted from an
English merchantman, lying in the port of Baltimore, and se-
Vol. I.-3 Q
490 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
creted himself on board the Independencia, until she sailed. It
also appears, that Hooper recruited in Baltimore, not in Norfolk.
But who is Currie P and what gives him superior credit to
Davis P. But I waive this inquiry, and will consider how far
the repugnancy between their depositions, discredits either.
Davis says he was born in New York ; and if this be untrue,
nothing he says ought to be believed, because, he knowingly
asserts a falsehood. Currie says that Davis is an Englishman; and
states facts, which may be presumed to be the foundation of his
assertion. They are, that he deserted from an English mer-
chantman, and that he had been employed during our war, under
the British flag. But seamen, born in England, are found in
American merchantmen, and seamen born in New York, may
be found on board an English merchantman. The fact of his
receiving prize-money, is much stronger, but not conclusive.
We have the highest authority for saying, that many of our
seamen were impressed, and Davis may be among them. The
fact is susceptible of explanation, and might, perhaps, have been
explained, had the deposition of Davis been taken, after the
statements of Currie were known.
|But he states, himself, to have enlisted in Norfolk, when it is
proved, that he came on board in Baltimore; and Hooper, by
whom he says he was engaged, was employed in Baltimore.
But how often is it, that the memory errs with respect to unim-
portant circumstances, but is correct with respect to the principal
subject. That Davis was enlisted, and by Hooper, were facts
which would make a much stronger impression on his memory,
than the place at which he enlisted. Baltimore and Norfolk
were equal to him ; he was, probably, at both, and might very
well have the impression that he enlisted at the one place, when,
in truth, he enlisted at the other. A mistake in such a circum-
stance, when the mind is not called particularly to it, would
not, perhaps, invalidate the testimony of a witness whose moral
character is not impeached. -
But let it be, that Davis is to be rejected. The testimony
which discredits him, must be believed. That testimony, as
MAY TERM, 1821. 491
\
Case of the Santissima Trinidad and St. Ander.
—z
well as the admission implied in the questions put by Commo-
dore Chaytor, shows, that Davis was enlisted within the United
States; and shows, further, that he was not a subject of Buenos
Ayres, but an Englishman.
Joseph Smith is proved to be unworthy of credit, but the
testimony which discredits him, shows, that he was enlisted
within the United States, and is a European Spaniard.
Isaac Berry, also proves the whole case ; but he is said to
have destroyed his whole testimony, by the contradictions
between his first and second depositions. What are those con-
tradictions 2 In his first, he says that he was shipped by
M*Donnel; in his second, by James. Both these men may have
kept sailors’ houses; both have recruited for Buenos Ayres; both
have communicated with Berry ; and, certainly, his not recol-
lecting distinctly with which he shipped, the act not always of
a sober man, does not prove that he was not shipped at all.
The commodore might shake his testimony, on this point, by
his muster-roll, or by taking the deposition of those who are
alleged to have shipped him, or of some of the crew who would
prove, that no such man was on board. But no such testimony
is adduced. One Wood, is said, in one deposition, to have been
second mate, in another, a midshipman. He might, in the
course of the voyage, have been both. But this does not prove
that Wood was not on board. He varies in his estimate of the
number of the crew. He does not profess to be exact.
I do not think these small variances affect the body of his
testimony, especially, as he states a great number of facts which
expose him to detection, if he spoke what was untrue.
John Harris, also, proves the whole case; but he, too, is said to
be unworthy of belief, because he speaks of a forty-two pounder,
which had no existence ; and because he speaks of eighteen
pounders, instead of twelves.
There may have been some large piece on board, which was
not brought in, though it is not probable; but this man, who has
probably sailed in many cruizers, may have confounded what
was on board one vessel, with the guns on board another. This
492 - VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
mistake, if it be one, might affect very seriously his testimony
respecting the armanent, but does not destroy his testimony
respecting his having been on board, when we recollect that he
gives, completely, the means of contradicting him, if he could be
contradicted. He names the officers and many of the crew, and
says by whom he was enlisted. The muster-roll, or James, or
any seaman on board the Independencia, could disprove any
untruth he may assert. I cannot, therefore, reject his testimony.
John Lewis is discredited, because he says that he is a native
American, and is proved to be a Frenchman. I admit that his
testimony is to be disregarded, but, still, he was enlisted in the
United States, and is not a subject of Buenos Ayres.
Matthew Murray proves the case, but is said, in his second
deposition, to speak only from hearsay.
I disregard entirely the testimony of Edward M*Donnel.
His reputation is such as to discredit him completely.
I proceed, now, to the examination of the claimant’s testimony.
Edward Currie was in the Independencia, while she lay in
the port of Baltimore, in 1816, and could have contradicted the
enlistments alleged to have been made there, had they been un-
true. He speaks only of John Davis.
Daniel James discredits M*Donnel. Why was he not exam-
ined as to the enlistment of the crew 2. It is said that he en-
listed Berry ; why was he not interrogated as to that fact 2
James Barnes, commander of the Mangoree, says, that the
Independencia was fitted, equipped, and manned, as he has un-
derstood, in Buenos Ayres, in May 1816 ; that the ships cruiz-
ing under the flag of that republic, of which the Mangoree
was one, are manned chiefly by foreign seamen. The Regent,
another of these cruizers, he understood to be fitted out, and
manned in the port of Baltimore. How the vessels of Buenos
Ayres were manned, is, in some measure, stated by other wit-
IleSS6S. \
Alexander Hunter, a native citizen of the United States, was
a sailor on board the Mangoree. Where did he enlist P He
does not say, and it is of not much consequence in this case.
MAY TERM, 1821. 493
i
Case of the Santissima Trinidad and St. Ander.
*
But he enlisted in the Independencia, in Baltimore. How is this
to be justified ? He had served the republic in the Mangoree.
But did this convert him into a subject of Buenos Ayres, who
was not an inhabitant of the United States ? Will it be contended
that by enlisting on board one privateer, an American citizen
acquires a right to enlist, within his own country, on board any
other The crew, he says, belonged to all nations. They did
not belong exclusively to Buenos Ayres.
Hugh Cagne says, that he is a native of Ireland, and has been
many years in the service of South America. How in her ser-
vice P He is a seaman, and the fair presumption is, that he
served in her marine. What is her marine P. We have no rea-
son to presume that it consists of much more than such vessels
as the Independencia, the Mangoree, the Altravida, and the
Regent, fitted out in other countries, and manned by foreigners.
At any rate, he does not state himself to have become a subject
of Buenos Ayres, and he does not state himself to have enlisted
in Baltimore. - - - l
He says, that among her crew, were many North Americans,
and most of the crew, who came in her from Buenos Ayres.
Where did those of her crew, who were North Americans, and
who did not come in her from Buenos Ayres, enlist P. We are
left to conjecture. But what was the condition of that part of
the crew, which came into port with her ? The greater number
of them sailed in her from Baltimore, and were, we must sup-
pose, engaged for the voyage. On their return to port, their en-
gagements terminated, unless others more extensive were made
at Buenos Ayres. William Amos has been examined, and gives
us some information on this subject. After the sale of the vessel,
he says, Captain Chaytor came on board, and told them, they
were at liberty to continue in the new service, or to be discharg—
ed. They chose to continue. Not one syllable is said of chang-
ing their political character, and throwing off their allegiance to
the United States. Not one syllable is said of their engaging
for a longer time, than till the vessel should return to the United
States. We must, then, suppose that they continued citizens,
494 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
and we have the more reason to believe, that their engagements
expired on their return to the United States, because, Amos
says he then left the vessel, and because Roe, who shipped at
Buenos Ayres, also says that he left her at the same place.
The crew, then, which came in her from Buenos Ayres, were
American citizens, who, most probably, re-enlisted in Balti-
more. Such a re-enlistment, is equivalent to an original enlist-
ment. If they engaged for a longer time in Buenos Ayres, I
think it would have been stated.
Cagne goes, not to prove the enlistment of strangers, indis-
criminately, but that they said they were in the service of the
patriots. How in that service P He does not tell us. He does
not say, admitting they spoke the truth, that every seaman, who
had made a cruize in a privateer, said to be commissioned by
any of the patriot governments, did not think himself in the
service of the patriots. About fifteen of the crew of the Man-
goree, shipped on board of her. All we know of this crew,
would lead to the opinion, that they were American, and such
other sailors as are found in our ports. They had been in the
patriot service, and Captain Chaytor supposed himself authorized
by that circumstance, to re-enlist them. But in this he was
mistaken.
Cagne says, too, that when she left the capes, her crew con-
sisted of about one hundred and twelve, among whom were
twenty-eight or thirty new men. Who were they Are they
proved to be citizens of Buenos Ayres, transiently within the
United States ? He does not pretend that they were. The fair
presumption from the whole testimony is, that they consisted of
that class of sailors, who are usually employed in privateering.
Whether those who had sailed in the Mangoree, were among
the number of new men, is not certainly stated ; it is probable
they were.
Cagne states a fact, which is certainly material, in the inquiry,
respecting the character of the Independencia. It is, that her
crew was enlisted, not for the cruize, but for the year, and were
on wages. But he entered the vessel in Baltimore, and does
MAY TERM, 1821. 495
Case of the Santissima Trinidad and St. Ander.
not say, that these were the terms on which the original crew
were engaged. It gives some complexion to this transaction,
that Cagne says, there were two brigs fitting out in Baltimore,
which sailed about the same time with the Independencia, which
were said to be intended as cruizers. It illustrates the practice
of the place, and aids in informing us, what is understood by
being in the patriot service. -
John H. Speck appears also, to have entered the Independen-
cia in Baltimore, and he agrees in every thing with Cagne.
About thirty men were enlisted in Baltimore, not one of whom
is said to have been a subject of Buenos Ayres; though they all
said they had been in the patriot service.
I think, then, the evidence is more complete, than could
have been expected, in a case of violation of law, that nearly
the whole crew of the Independencia was enlisted within the
United States, in violation of the act of congress, and of the
neutrality of this government. The prize goods in question,
have been taken by a neutral force. I must consider the men
who came in the Independencia from Buenos Ayres, and the
thirty men engaged in the Chesapeake, as enlisted within the
United States, and as being men who could not be lawfully en-
listed. - -
It is unnecessary to extend the inquiry to the equipment, or
the augmentation of the armament. The enlistment being esta-
blished, the law is the same, whether those charges be supported
or not. -
It is equally unnecessary to extend the inquiry to the Altra-
vida. - -
The prize having been made, in truth, by neutral means, is
it the duty of the government to restore it to the original owner,
when it is brought within the power of the United States ?
The reasoning in favour of an affirmative answer to this ques-
tion, appears conclusive. The government is bound to maintain
its neutrality; and to prevent a foreign belligerent, from pre-
paring a military force within its territory, to operate against a
nation with whom it is at peace. If its means of prevention
496 VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
have been eluded, and its force against its will, been employed
by a belligerent, in a manner not authorized by public law, if
it has been thus made an instrument of war, the injured belli-
gerent has claims on the neutral government, which has corre-
sponding claims on the aggressing belligerent. If, under such
circumstances, the means of obtaining reparation from the one,
and of making it to the other, are placed within the power of
the neutral, the strongest reasons of convenience, and of justice,
seem to require that he should use those means. When a ship
of war, which has acquired her military capacities in a neutral
country, brings her prize into that country, these plain princi-
ples require, that the prize should be restored. In conformity
with them, the Grange, captured by the Ambuscade frigate,
within the waters of the United States, was restored by the
government. -
A question of much more difficulty remains to be considered.
By what department of the government is this restitution to be
made.
Without recapitulating much of what has been said at the bar,
by stating the reasons on which my opinion is founded, I will
acknowledge, that in my private judgment, this right, and this
duty devolve on the executive, or legislative, and not on the
judicial department. The exercise must be regulated by a dis-
cretion, which courts do not possess, and may be controlled by
reasons of state, which do not govern tribunals acting on prin-
ciples of positive law. If, therefore, this was a case in which
my own judgment was alone to be consulted, I should, I believe,
confine myself to the inquiry, whether any act of congress au-
thorized the restitution sought by the libellants. But this Court
is not at liberty to decide for itself. It is bound, and ought to
be bound, by the decisions of the supreme court, and its judg-
ment must conform to those decisions. They are admitted to
have settled the principle, that property captured by privateers,
fitted out, armed, or manned, within the ports of the United
States, and brought within the power of our courts, may be
restored by them to the original owner. It is, however, contended
MAY TERM, 1821. 497
Case of the Santissima Trinidad and St. Ander.
that the same principle does not extend to captures made by
national ships. y
That national ships are in many respects distinguishable from
privateers, is not to be denied ; is this a case in which a sound
distinction can be taken between them 2
Ships of war and privateers, both cruize under a commission
from their sovereign, and both make prizes under the authority
of that commission. In both cases, the sovereign is the captor,
and the prize vests absolutely in him. The cruizer, in both
cases, is a mere instrument of war employed by his sovereign,
and the particular interest which the agent may have in the
thing acquired, depends on municipal regulations, of which this
Court can take no notice. The courts of the captor, will in both
cases distribute the proceeds according to those municipal regu-
lations, but foreign courts consider the property as the pro-
perty of the sovereign, and the possession of the captor as the
possession of the sovereign. In both cases, then, the foreign
court which acts upon the prize, acts on property in the posses-
sion of a foreign sovereign, acquired by his authorized agent.
In what then does the difference between the right of courts, to
interfere with their prizes consist P :
We are told that the national ship of war, carries upon its deck
a portion of the sovereignty of his prince, and is, of course,
inviolable. *
I am not prepared to say that a privateer, commissioned for the
purposes of war, is not equally inviolable, at least so far as
respects its military operations. But I will not enter into this
inquiry. I will ask, how is this inviolability acquired, and how
far does it extend ? - -
In the case of the Exchange, [7 Cranch, 116,.] the supreme
court laid down the principle expressly, that this exemption from
the jurisdiction of the nation, in which the national ship of a
foreign sovereign is found, is derived, where there is no express
compact, from the assent implied in the admission of such vessel
into port. But the same case establishes this further principle:
that this immunity is granted, on condition that the sovereignty
Vol. I.-3 R
49S VIRGINIA.
Case of the Santissima Trinidad and St. Ander.
of the place be respected. A breach of the condition, forfeits
the immunity depending on it. A national ship, openly and
grossly violating the laws of a neutral government, enlisting a
full crew, in opposition to those laws, forfeits the condition on
which an exemption from those laws was granted. On this prin-
ciple, the Grange was restored.(5) The government acts with-
out being charged with a violation of faith. If the government
acts, it acts by that department, which is entrusted with the
power of inquiring, whether the belligerent has violated those
neutral rights which forfeit his prize, and if the courts exercise
this power rightfully, in the case of prizes made by privateers,
they may, I think, exercise it in the case of prizes made by a
national ship, and brought within our territory. If there is
fallacy in this reasoning, I do not perceive it.
But, supposing it to be applicable to a capture made within
our waters, and immediately arrested, it is contended, that it is
inapplicable to a capture made on the high seas, and brought
within our waters. The violation of neutrality gives, it is said,
a claim on the sovereign, whose power is an unit, and cannot
give rights to seize prizes made by one vessel, more than by
another. When the offending vessel comes again into port, she
comes in with all the immunities originally attached to her.
In theory, this argument is strong; but, practically, it would
destroy the efficacy of the principle. It would deprive the neu-
tral government of its power to give specific relief; and seems
to me to be as applicable to prizes made by privateers, as by
national ships. -
Another idea was suggested by the counsel for the claimants,
of which I feel the full force. It is, that this application to the
neutral sovereign, to vindicate his neutral rights, and repair the
wrongs done to a foreign sovereign, must be made by that for-
eign sovereign himself, through his authorized agent, and not
(5) The Grange was a British ship, which had been cleared out from Phila-
delphia, in 1793, and was captured by the French frigate L'Ambuscade, within
the Capes of the Delaware, while on her way to the ocean. Revised edition of
Marshall’s Life of Washington, vol. ii. 262-[Editor.]
MAY TERM, 1821. 499
Case of the Santissima Trinidad and St. Ander.
by a private individual. Were I to admit this, the question im-
mediately occurs—Does not this objection go as strongly to the
restoration of prizes made by privateers, as to the restoration of
prizes made by national ships ?
I am not sure, that I am master of that train of reasoning,
which has conducted the supreme court, to the assertion of that
jurisdiction over prizes made by privateers, which has been ex-
ercised. If I were, I should not attempt to give it, because it
will be stated more ably by those who are themselves convinced
of its propriety. I content myself with saying, that I think the
principles on which prizes made by privateers, have been re-
stored, apply to prizes made by national ships, who have vio-
lated the neutrality of the United States, and I, therefore, hold
myself bound to restore in this case. The sentence of the dis-
trict court is affirmed.
NoTE.—This cause was carried by appeal to the supreme court of the United
States. It was argued with distinguished ability, both in the circuit and supreme
court, and the sentence of the circuit court was unanimously affirmed by the
supreme court. See 7 Wheat. Rep. 283; 5 Con. Rep. Sup. Ct. U. S., 282.
—[Editor.] -
500 .. VIRGINIA. "
BACKHous E’s Administrator v. JETT’s Administrator et al.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
Where a chancery suit is depending against an administrator, and the cause has
been referred by the court, to a commissioner, to ascertain the amount due by
the administrator to the estate of his intestate, it is error in the commissioner
to admit an administration account of the said administrator, which has been
settled before another commissioner in the country, under the direction of a dis-
tinct tribunal, and while the suit in this Court was pending, without the
knowledge or participation of the complaimant. The commissioner should
require vouchers for each item in such account, and reject all items that are not
established by competent testimony.
A father, in 1783, made a voluntary deed of gift of certain slaves to his only son,
and possession followed and accompanied the deed. In 1785, the father died,
having appointed his wife and another, executrix and executor of his last will.
Subsequently, the son and donee qualified as administrator de bomis mon upon
his father's estate, and in that capacity, a judgment at law when assets was
rendered against him for a considerable sum of money, the jury having found
for the administrator on the plea of fully administered. Many years after the
date of this judgment, the plaintiffs filed a bill in chancery against the adminis-
trator and others, assailing the deed of 1783, as fraudulent as to creditors,
and claiming to have their debt discharged out of the property conveyed by
that deed. -
Held: 1. That the slaves conveyed by such voluntary deed, are not assets in
the hands of the representative of the donor's estate, although such represen-
tative was the donee himself.
3. That though such voluntary deed is void as to creditors, whether the transac-
tion involve moral turpitude or not, it vests in the donee a title that is good
against all the world save creditors, and defeasible by them only. Though
creditors have a claim upon the slaves, conveyed by such deed, for the payment
of their debts, they have no title to the slaves themselves. The donee does
not seem to be a mere trustee for creditors, and is not liable for the hires and
profits of the slaves and their issue, or for interest on the sales of such as have
been sold, from the time that he received them, or that the slaves were sold, but
is responsible only for the slaves themselves, and their issue, that were in being
when the demand was made by the creditors, and their profits from that date,
and for the money actually received for those which have been sold, and
interest thereon, from the time that the demand was made ; viz. from the in-
stitution of the suit.
MAY TERM, 1821. 501
*===s*
Backhouse's Administrator v. Jett's Administrator et al.
ON the 10th day of June, 1783, Thomas Jett, of the county
of Westmoreland, Virginia, made a deed of gift of one half
of all his lands in fee simple, and twenty-one slaves, which are
mentioned in the deed by name, and also a moiety of all his
other personal property of every kind, whatsoever, to his only
son, William Storke Jett, for his support and advancement in
life. This deed of gift was duly recorded in the county court
of Westmoreland, on the 29th day of July, of the same year.
In the month of February, 1785, Thomas Jett, the father, made
his will, ratifying and confirming the deed of gift to his son
William, and making sundry devises, and giving sundry specific
legacies to his wife Sukey Jett, and other relatives. The tes-
tator appointed his wife and another, executrix and executor of
his will; and during the spring or summer of 1785, he departed
this life. Some time after the death of Thomas Jett, the then
representatives of John Backhouse, the intestate of the complain-
ant, instituted an action of assumpsit against William Storke
Jett, the administrator, with the will annexed of Thomas Jett,
deceased. The defendant pleaded the general issue of... non
assumpsit and plene administravit, and the jury found for the
plaintiffs on the first issue, and for the defendant on the last. At
the June Term of this Court, 1799, judgment when assets was
rendered in favour of the plaintiffs for the sum of $3378 56.
A few years after the rendition of this judgment at law, the
plaintiffs filed their bill in equity, in this Court, against William
Storke Jett, in his own right, and as administrator de bonis non
of Thomas Jett, deceased, and the other legatees of Thomas
Jett, alleging, that they had in their possession property be-
longing to the said Thomas Jett’s estate, of which the jury had
no knowledge at the trial of the issue of fully administered,
and praying a discovery of the amount and value of said pro-
perty, which was in their hands respectively, and that it
might be subjected to the payment of the debt for which their
judgment, at law, was rendered. No specific claim, however,
was asserted in the bill, to the property conveyed by the deed
of the 10th of June, 1783, to William Storke Jett.
502 - VIRGINIA.
Backhouse’s Administrator v. Jett’s Administrator et al.
The principal defendant, William Storke Jett, admitted in his
answer, that his father, Thomas Jett, died considerably indebted
to the plaintiff’s intestate, but insisted that all the assets that had
come to his hands to be administered, had been faithfully applied
to debts of equal, or superior dignity, to that due to the estate of
John Backhouse. He denied that he had, as charged in the bill,
delivered the specific legacies to the respective legatees, but
affirmed that the subjects of those legacies had been, several
years before the date of the will, given to the legatees, who had
ever since had them in possession, and that they were mentioned
in the will, as legacies, by way of confirming gifts, theretofore,
made by the testator to his children, and also denied that they
had ever gone into the hands of Thomas Jett’s representatives
as assets, or ever could in truth be so considered, as the gifts,
being of personalty, were complete by the delivery, and an
absolute title had thereby vested in the donees. -
Various orders were from time to time made in the cause, and
in July 1817, the surviving plaintiff filed his amended bill, as-
sailing the deed made by Thomas Jett to his son William Storke
Jett, before recited, as fraudulent and void as to creditors, the
grantor being (as was alleged) largely indebted at the time of
its execution, to an amount more than sufficient to absorb the
residue of his estate, as was shown by its subsequent insolvency,
under the administration of the donee himself. The amended
bill, also charged that several debts of Thomas Jett had been
paid from the personal fund, in the hands of the administrator,
in discharge of specialties, which bound the land thus fraudu-
lently conveyed, and to the amount of such disbursements,
claimed that the plaintiff should be substituted in the place of the
bond creditors, and have the benefit of the charge they might
have asserted against the land, &c.
William Storke Jett, in his amended answer maintained, that
the deed of June 1783, was valid, inasmuch as it was made by a
man universally deemed solvent at the time, and affirming that
the debts referred to in the amended bill, as specialty debts, were
in truth but simple contract debts, being due upon bills of ex-
MAY TERM, 1821. 50.3
Backhouse's Administrator v. Jett's Administrator et al.
change, which did not bind the land : but that if the court
should consider the said deed as void as to creditors, still in no
event could he be charged with the increase and profits of the
slaves, or for the value of such of them as were dead, or for
interest upon the sales, &c., no notice having been given until
the amended bill was filed, after a lapse of thirty-three years
from the date of the deed, that the property thereby conveyed,
would be sought to be made liable for the plaintiff’s claim.
At the June Term of this Court 1819, the Court “without de-
ciding at present upon any of the points stated in the answer,”
made an interlocutory order, directing any commissioner of the
court, to execute a prior order made in the cause, and recom-
mitting it to the same commissioner, with specific instructions to
report further, inter alia, accounts of the values of any estates
derived, by any of the defendants, under gifts from the said
Thomas Jett, in his lifetime, distinguishing in such accounts the
real from the personal estate so derived, &c. and report thereof,
to the court. In pursuance of this order, the commissioner made
his report, stating that William Storke Jett, the administrator of
Thomas Jett, had, at two different times, made up his administra-
tion accounts on Thomas Jett’s estate, before commissioners
appointed by the county court of Westmoreland, &c., dated the
22d day of September, 1798, showing a balance due the admin-
istrator, of £200 0 11%, and the last on the 18th of May, 1818,
showing a balance in his favour of £1639 155%, “neither of
which has been surcharged and falsified, nor attempted to be ;
therefore, the commissioner has (agreeably to the rule of our
state courts) taken them as correct.” The commissioner also
reported the estimated value of the property, real and personal,
conveyed by Thomas Jett to William Storke Jett, by the deed
of 1783, allowing interest on the whole amount, from the 31st
day of December, 1786. The estimated value of the slaves
alone, with interest from that date, would more than satisfy the
whole demand of the complainant. To this report various ex-
ceptions were taken, both by plaintiff and defendant, which are
*O4 VIRGINIA.
-*
Backhouse’s Administrator v. Jett’s Administrator et al.
------sº
fully stated, and considered in the following opinion, delivered
on the 6th day of June, 1821, by
MARSHALL, C. J.-In this case, the plaintiff had instituted a
suit on the common law side of the court, to which the defend-
ant pleaded the general issue, and fully administered. The first
was found for the plaintiff, and the second for the defendant, and
judgment was rendered for the plaintiff, to be satisfied out of the
assets of his testator, when they should come to his hands to be
administered. This bill is filed, alleging, that assets were in the
hands of the administrator, at the time the verdict was given,
which were not known to the plaintiff, and were not shown to
the jury, and that assets have since come to the hands of the ad-
ministrator, which are liable for this debt. The bill, also, asserts
a claim on the real estate, upon the principle of marshalling assets.
The accounts were referred to a commissioner, and his report
has been excepted to by both parties.
The plaintiff excepts, because the commissioner has given to
an ear-parte report, made by the county commissioners, to the
county court of Westmoreland, while this suit demanding an
account, was depending in this court, the same effect as would
be allowed to such report, had it been made before the institu-
tion of this suit.
This exception is sustained. While a suit for an account is
depending, neither of the parties ought to be permitted to change
their relative situation by a proceeding, without the knowledge,
or the participation of the other. The commissioner, therefore,
ought to have required vouchers for this account. It is said,
that the deposition of Mr. Campbell, is a sufficient voucher for
the most considerable item in it. The objection made to this
deposition is, that this debt was not mentioned in the account,
which was taken before the commissioners in 1798, nor in the
answer filed in this cause.
[NotE, by the Editor.—The deposition of Campbell, re-
spected a debt due of £450, due from Thomas Jett, in his life-
MAY TERM, 1821. 505
Backhouse’s Administrator v. Jett’s Administrator et al.
time, to the estate of the deponent’s father, which debt had
been paid by William Storke Jett, executor of Thomas Jett, in
1788. This debt was omitted in the administration account of .
William Storke J ett, settled before the commissioners in 17 98,
but the executor was credited with it in the settlement made in
1818, before the commissioners of the county court of West-
moreland, during the pendency of this suit.]
These omissions certainly throw some doubt over the claim
for this credit, and require that it should be sustained by clear
testimony; but they do not conclusively negative the right to it.
When an administrator supposes himself to have fully adminis-
tered the assets in his hands, he may be careless about adding to
the sum he has overpaid ; and when a plaintiff himself comes
into a court of equity, after a verdict against him, on the plea
of fully administered, to show assets at that time, in the hands
of the administrator, he cannot be permitted to contest the right
of the administrator, to show the disbursement of those assets.
I shall, however, reserve the decision on this claim, till the re-
port shall come in.(1)
(1) It has always been the practice in Virginia, for the county courts, at the
instance of an executor, or administrator, or any party interested in his accounts,
to make an ex-parte order for the settlement of the administration account before
commissioners, without any summons to the parties concerned. TAYLoR, Chan-
cellor, in Mountjoy v. Lowry, 4 H. & M. 428. And this account, when, so
settled, without notice, is taken as prima facie evidence of the correctness of the
charges and credits, therein contained ; but any party interested, may, by bill in
equity, surcharge and falsify it, if capable of adducing satisfactory evidence
for that purpose. TucKER, J., in Anderson, &c. v. Fox, &c., 2 H. & M. 260;
Atwell’s Adm’rs. v. Milton, 4 H. & M. 253 ; Preston &c., v. Gressom's Dis-
tributees, 4 Munf. 110. Upon a bill to surcharge and falsify an account of an
executor, settled by commissioners, under an order of the court before which
the will was proved, if the answer discloses nothing improper in the account, and
the complainant exhibit no evidence to sustain his allegations, it is not incumbent
on the court of chancery, to refer the account to a commissioner, but the bill
should be dismissed. Willie and Wife v. Venable's Ex’or., 4 Munf. 369. But
while the plaintiff must specify the items of surcharge and falsification, it is com-
petent for him to show error upon the face of the account. Allen's Ex’or. v.
VoI. I.--3 S
506 VIRGINIA.
Backhouse's Administrator v. Jett's Administrator et al.
The principal controversy between the parties, respects a
number of slaves, comprised in a deed of gift made in his life-
time by Thomas Jett, the original debtor, to the defendant, his
son, for his establishment in life. This deed being voluntary,
is said to be fraudulent as to creditors, and the plaintiff claims
the slaves and their hire, from the death of the donor. The de-
fendant contends, that he is liable only for the slaves now alive,
for the price of such as have been sold, and for interest and
hires, if at all, only from the filing of the bill, in which the
claim is made. -
The commissioner has charged the administrator, with the
value of all these slaves, and with interest on this sum. Several
exceptions have been made to this item of the account, and the
instructions of the Court, for regulating the conduct of the com-
missioner, have been required. -
Carr, &c., 3 Leigh, 407; Lee and Wife v. Stuart, &c., 2 Leigh, 76. And,
although, under circumstances, an executor ought not to be charged with interest
on balances in his hands, yet, in general, he is so chargeable; and where in an
eac-parte settlement of an executor’s account, the commissioners omit to charge
interest, without assigning any good reason therefor, such omission may be cor-
rected, upon a bill brought to surcharge and falsify. Burwell’s Ex'or, v. An-
derson’s Adm’r., 3 Leigh, 348. The presence of a legatee, during the progress
of the eac-parte settlement, and his failure to state any objections, when desired
to do so, (the legatee not being present when the accounts were closed, and the
results stated,) will not preclude him from bringing his bill to surcharge and
falsify. Allen's Ex’or. v. Carr, &c., supra. And where, on a bill to sur-
charge and falsify, if an order be made for a new settlement, and the vouchers
cannot be still produced, they will be presumed to have existed, especially, after
a great lapse of time: the onus probandi is thrown upon the contesting party.
McCall v. Peachy’s Adm’r., 3 Munf. 295, 301, 305; Tabb v. Boyd, 4 Call,
453. The above is a condensed summary of the decisions of the court of appeals
on this subject, which are collected by Mr. Robinson, 2 Rob. Prac. 113–115.
The question, whether the settlement of an administration account, made eac-
parte, under the order of another court, pending a suit against the executor, be-
fore a distinct tribunal, will be taken as prima facie evidence by the latter court,
has never yet, it is believed, been decided by a court of last resort. The editor,
however, is informed by Judge P. P. BAR Bour, that the invariable practice of
the court of chancery at Fredericksburg, while he practised there, was not to
regard the account settled pendente lite ; and to require vouchers for each item.
—[Editor.]
MAY TERM, 1821. 507
Backhouse's Administrator v. Jett’s Administrator et al.
The plaintiff contends—
1st, That these slaves were assets in the hands of the admin-
istrator. 3.
2d, That a person, holding under a voluntary deed, is liable
for profits. g
If the first point be decided in favour of the plaintiff, it will
determine the question, for it has never been doubted that an
administrator is liable for the profits, which have been made on
the assets in his hands. &
Are slaves then which are given by the owner in his lifetime,
assets in the hands of his representative, if required for the pay-
ments of debts 2 -
If this was a case of the first impression, it would be decided
by the words of the act of our state legislature, which makes
such deeds of gift void against those only who may have been
injured by them. As between the parties, they are to all intents
and purposes valid. William Storke Jett, so far as respected
any claim to be set up by Thomas Jett, was the owner of these
slaves; and if this be true, they could not be assets in the hands
of the representatives of Thomas Jett. But our statute is in a
great degree copied from that of England, and so far as it is
copied, Virginia is supposed to have adopted, with the statute,
the settled English construction of it. It is therefore proper to
examine the English cases on this point. -
The counsel for the plaintiff relies much on Roberts, on
Frauds, vol. ii. page 592–3.(2) Roberts says, “But, wherever
a man makes a fraudulent gift of his goods and chattels, and
dies indebted, the rule, upon the statute of Eliz. ch. 5, has always
been to construe the gift as utterly void against all his creditors,
and the debtor to have died in full possession, with respect to
their claims, so that the effects are just as much assets in the
hands of the personal representatives, as to creditors, as if no
such attempt to aliene them had been made.”
It is admitted, that Roberts lays down the rule, in broad and
(2) Roberts on Fraudulent Conveyances, 592-3.−|Editor.]
508 VHRGINIA.
Backhouse's Administrator v. Jett's Administrator et al.
explicit terms. But very little attention to what immediately
follows, will be sufficient to show that his expressions are very
unguarded ; and that if his proposition is true in any case, it is
only in the case of the donor’s retaining possession. This was
the point determined in Bethel v. Stanhope, Cro. Eliz. 810.
In Bethel v. Stanhope the donor died in possession, and the
defendant had intermeddled with the goods, so as to become
executor in his own wrong, before administration was granted
to him. After administration granted, he delivered the goods
to the donee, who was the daughter of the donor. The court
determined, 1st, That the defendant might be sued as executor,
and 2d, That the goods which had been in his possession, were
assets, and remained such, notwithstanding the delivery to the
donee. -
In addition to the very essential fact, that the donor, in this
case, died in possession of the goods, there was a clause in the
deed, that it should be void upon the payment of 20s, and the
jury expressly find that it was made by covin, to defraud his
creditors. As covin implies participation in the actual fraud on
the part of the donee, it is presumed that she could not have
recovered these goods in a suit againt the donor, or his adminis-
trator. He was, therefore, in possession of the goods, which he
might lawfully retain, and which were assets in his hands for
the payment of debts. He could no more divest himself of
these assets, or of his liability for them to creditors by deliver-
ing them to a donee, not having a legal right to demand them,
than by delivering them to a legatee. -
Roberts adds, “To give substantial effect to this construction,
the voluntary donee is considered as liable to be charged as
executor de son tort, if he take possession of the goods after the
decease of the donor.” -
Now, to me it seems difficult to reconcile this determination
with the idea, that these goods are assets in the hands of the
rightful executor. If any other person take them from the pos-
session of the executor, he is a trespasser, and not an executor
de son, tort, unless he claims to take them as executor, or does
MAY TERM, 1821. 509
Backhouse's Administrator v. Jett’s Administrator et al.
other acts of an executor. This is expressly determined in
Read’s case, 3 Coke, 33.(3) It seems to me, that charging the
donee, in this case, as executor de son fort, when another person
would not be so charged for the same act, instead of proving,
that they are assets in the hands of the rightful executor, goes
far to prove the contrary. Read’s case contains another princi-
ple, which is decisive on the general question, where the pos-
session has been parted with by the donor. The court says:
“When the defendant takes the goods before the rightful
executor hath taken upon him or proved the will, he may be
charged as executor of his own wrong, for the rightful executor
shall not be charged but with the goods which come to his
hands after he takes upon him the charge of the will.”
Now, if the executor shall not be charged with goods of
which the testator died possessed, until they are reduced to
actual possession, he shall not, a fortiori, be charged with goods
of which the testator did not die possessed, but which he had
given away in his lifetime., But to return to Roberts. He
says, that where the goods are taken by the donee, after adminis-
tration granted to another, he may be charged as executor de
son tort: “ and this,” he adds, “ seems to be a rule much in
favour of the rightful executor and administrator, who cannot
excuse himself upon the statute of Elizabeth, from delivering
up the subject of his testator’s, or intestate’s fraudulent gift to
the donee, if he demand it.”(4)
Now, this proposition appears to me to be in direct opposition
to that before laid down by the same author. If, under the
statute, the executor is obliged to surrender the thing given to
the donee, even where the donor dies in possession, and the
thing is in his hands, he is not afterwards chargeable with the
same property as assets, and, a fortiori, he cannot be charged
with it, if it never came to his hands, but was delivered to the
donee, in the lifetime of the testator.
(3) Part W.-[Editor.] -
(4) Roberts on Fraudulent Conveyances, 594.—[Editor.]
510 VIRGINIA.
—a-º-º-
Backhouse’s Administrator v. Jett’s Administrator et al.
—-tsº
This last doctrine of Mr. Roberts, is completely sustained by
the case in Cr. Jac. 271.(5) In that case, the donor died in
possession, and the donee sued the administrator, who pleaded,
that the gift was fraudulent, and that his testator was indebted,
and did not leave other assets sufficient to pay his debts. The
plaintiff demurred, and the court gave judgment in his favour.
This case seems to me to be entirely decisive of the whole
question. If the administrator could not maintain his own posses-
sion against the donee, it is very clear that he could not defeat
the possession of the donee; and if he could not, it is equally
clear, that the law cannot consider the goods as assets in his
hands. t --
Mr. Stanard also quoted 1 Mad. 218, and 2 Term Rep. 587.(6)
But Maddox goes no further than to say, that the goods “shall
still be considered as a part of the donor’s estate for the benefit
of his creditors;” that is, as I understand him, they shall be so
considered in the hands of the donee ; and the case in 2 Term
Rep. only determines, that the donee may be considered as execu-
tor de son tort.
I think, then, it is very clear, that, according to the English
cases, as well as on the words of the statute, these slaves are no
!
asSetS.
2d, This leads to the inquiry into the extent of the liabilit
of the donee.
It is not denied that this is a case free from any charge of
covin. There is no fraud in fact, or bad faith on the part of
the donee. I think there was none on the part of the donor,
for the case presents no reason for supposing that the deed was
made in contemplation of insolvency, or with a view to defraud
creditors. It is made two years before the death of the testator,
(5) 3 Croke's Reports, 270-71. Hawes v. Leader—[Editor.]
(6) Edwards v. Harben, executor of Mercer, 2 Durnf. & East, 587. Creditor
took an absolute bill of sale of the goods of his debtor, but left them in debtor's
possession a limited time, during which he died, and creditor took the goods and
sold them. The bill of sale gave no title, as possession did not follow and accom-
pany it, and creditor liable as executor de son tort.—[Editor.]
*-
MAY TERM, 1821. 511
Backhouse's Administrator v. Jett’s Administrator et al.
and before the date of his will, and it is not pretended, that he
was at the time in bad health. He does not appear to have been
pressed by creditors, nor does the administration account ex-
hibit debts of which he might be particularly apprehensive. There
are no judgments, or even bonds ; there is nothing to induce a
suspicion, that he was not in good credit, or that he doubted his
ability to pay any claim which might be brought against him.
In this situation, he gives half his estate to his only son for his
establishment in life. The policy of the law very properly
declares this gift void as to creditors, but looking at the proba-
ble views of the parties at the time, there appears to be no moral
turpitude in it. In such a case, is the donee responsible for
more than the slaves themselves, including their issue now in
existence, and their profits from the time they were claimed by
creditors, and for the money actually received for those which
have been sold, and for interest on that money, from the same
time 2 Is he responsible for profits, which accrued before the
creditor made his demand 2 -
There is some difficulty in this question, considered merely
on principle. The donee has title against all the world, except
against creditors. He has a title defeasible by creditors only.
It is good against the donor and his executors. Where a person
having no title, holds the property of another, the profits belong
to that other ; but in this case, the slaves are not the property of
the creditors. They have a claim upon them for satisfaction of
their debts, but no title to them. Profits, in the hands of an
executor, are liable for debts, because they form a part of the
estate of the testator, and the executor receives them as trustee
for that estate. But the donee is not a trustee for the estate of
the testator ; and it is not clear that he is a trustee for the credi-
tors, since he has always held the property in his own right. It
is by no means clear upon principle, where the title is not to the
thing itself, but to have it sold in satisfaction of a debt, that this
title can extend to the profits previously made of that thing, by
a bona ſide possessor.
It might be expected, that these questions had frequently
512 - VIRGINIA.
Backhouse’s Administrator, v. Jett’s Administrator et al.
arisen under a statute, passed in the reign of Elizabeth, and had
been long settled. & But I have been able to find no case in
which it has arisen ; and I am the more inclined to think it
never has been made, because the gentlemen concerned in this
cause would, I think, have found the case, had it existed. In
Patridge v. Goss, Ambler .596, a gift of money to daughters
was declared void, and directed to be refunded, but no claim
appears to have been made for interest.
Viner, in his first volume, page 186, pl. 9, lays down the broad
and general principle, that a bona fide possessor receives the
profits as his own. But I should be much better satisfied could
I see the case itself, and the reasoning on which the decision was
made.
In the absence of decisions in cases of personal property,
those which have been made respecting the profits of real estate
have been resorted to on both sides, and gentlemen, reasoning
from analogy, have applied the law in such cases, to voluntary
gifts of chattels. It has been affirmed, and denied, that heirs,
devisees, and all persons holding real estates as volunteers, are
accountable to creditors for profits.
The case of Davies v. Top, 1 Brown’s Chan. Rep. 524, has
been relied on, as showing that the heir is accountable for
profits.
The report of that case, is remarkably confused and unsatis-
factory. John Top died in April 1778. The bill was brought
for an account and application of the personal estate, not spe-
cially bequeathed, to the payment of debts; and in case the
personal estate should not be sufficient, to have the deficiency
raised by sale or mortgage of the real estate.
The cause was heard at the rolls in February 1780, when it
was directed, that the real estate should be sold, to make up any
deficiency in the personal estate; and it was declared, that if the
real estate should not be sufficient, the rents and profits should
be applied to make up the deficiency. w
There are several parts of this decree, as stated, which appear
to me to be very extraordinary ; but I shall not notice them,
MAY TERM, 1821. 513
Backhouse's Administrator v. Jett’s Administrator et al.
because they do not apply to the question before the Court,
though they certainly bring the whole case into some doubt.
But the decree, so far as it respects rents and profits, is express-
ed in general terms, not declaring, whether the rents and profits
shall be computed from the death of the testator, or from the
filing of the bill. In the particular case, it could not have been
of much consequence, for the cause was heard at the rolls, in
less than two years after the death of the testator, which leaves
it probable, that no profits accrued between the death of the
testator, and the filing of the bill. º
It does not appear, certainly, from the opinion of the chan-
cellor, whether this case was affirmed or reversed, and in his
opinion, not a syllable is said on that part of it which respects
profits. The principal question, that on which the parties were
desirous of obtaining the opinion of the court, appears to have
been, whether, after purchased lands which descended to the
heir, or specific legacies and lands, specifically devised, but
charged with debts and legacies, should be first liable for those
debts. The complexion of the case, gives some reason for the
opinion, that the question of profits was, in fact, of no import-
ance, and was not raised in the bill. This case, I think, leaves
that question where it was found. -
The cases in 2 Atkins, are so obscurely reported, as to give
no decisive information on the subject. In Sims v. Urry, 2 Ch.
Ca. 225, the chancellor decreed profits only, from the time of
pronouncing the decree. {
Baron Weston’s case, as cited in 1 Vern. 174, was this: Baron
Weston brought debt on a bond against the heir, but for three
descents the heir continued an infant, so that the parol demur-
red. The guardian received the profits of the estate, and con-
verted them to her own use. The baron brought an action against
her, as administratrix of the children, but did not succeed. In
the principal case, the counsel admitted that profits could not
be demanded during minority. -
In Waters v. Ebral, 2 Vernon, 606, it was determined, that
VoI. I.-3 T
514 VIRGINIA.
Backhouse’s Administrator v. Jett’s Administrator et al.
a guardian was not compellable to apply the profits of a ward’s
estate, to the payment of bond debts. -
In the case of Chambers and others v. Harvest and others,
Moseley, 124, the question was, whether the heir should account
for profits from the time of filing the bill P
In 6 Wes. 93, [Pulteney v. Warren, the chancellor says ;
“Where there has been an adverse possession, and upon an
application to this court, upon grounds of equitable relief, the
plaintiff appears entitled to an account of rents and profits, if
there has been a mere adverse possession, without fraud or con-
cealment, or an adverse possession of some instrument, without
which the plaintiff could not proceed; the court has said, the
account shall be taken only from the filing of the bill, for it is
his own fault not to file it sooner.” *s.
In 7 Ves. 541, [Pettiward v. Prescott, the amount of rents
and profits was restrained to the time of filing the bill. *
These two cases from Vesey, are not cases where the heir is
made liable for the debt of the ancestor. They are eases of
title, which is much stronger. Even in them, the account has
been restrained, where there was nothing to prevent the plain-
tiff from having proceeded, to the time of filing the bill.
In the case of Shettleworth v. Neville, 1 Term Rep. 454,
which was an action of debt against the heir, Ashhurst says:
“Till the possession is recovered against him, (the heir,) he
is entitled to the rents and profits; and he is entitled to
receive them till judgment is given against him.” [1 Durnf. &
E. 457.] * . ~
At common law, the heir who had aliened before action
brought, might plead, that he had nothing by descent at the
time of suing out the writ or filing the bill. Had the profits
been assets, this plea could not have been maintained. The
profits, therefore, were not assets. The statute of the 3d and 4th
of William & Mary, which has rendered the heir, in cases of
alienation, liable for the value of the land, does not make him
liable for the profits, or for interest on the money. It is to be
MAY TERM, 1821. 515
Backhouse’s Administrator v. Jett's Administrator et al.
fairly presumed, that the statute has adopted the rule of the
court of chancery. - o:”
Upon the best consideration I can give to the cases, I am well
satisfied, that chancery does not make an heir responsible for
profits accrued before the filing of the bill, and I think the
analogy between real and personal estate, in this respect, is a
strong one. ,
This question was well considered in Munford’s case, and
decided against the claim to profits. I regret that the opinion
then given, has been mislaid. [Mutter’s Executors v. Munford,
ante, p. 266. Chief Justice’s note at the end of the case.]
The plaintiff’s counsel has relied on a case reported in 5 Mun.
492. [Baird v. Bland et al.] In the construction of a state
statute, the courts of the Union have uniformly adopted the
rule of decision, given by the state courts. If, therefore, the
court of appeals had decided, that under our Statute of Frauds, a
donee was responsible for profits, I should have followed the
precedent, however erroneous I might have thought it. But
the case to which the plaintiff has referred, is not a case under
the statute. It is not the case of a creditor, but of a person hav-
ing title to the slave recovered.
I think the defendant, William Storke Jett, is responsible for the
slaves now alive, at their present value, or for the slaves them-
selves; and for profits from the filing of the amended bill
which claims them ; and for the money actually received for
those which have been sold, with interest thereon, from the same
time. And the report is to be made up in conformity with this
opinion.
DECREE.-In conformity with the above opinion, an interlo-
cutory decree was rendered, allowing the exceptions of both
parties, and recommitting the report to the commissioner, with
instructions, “not to admit any account taken before commis-
sioners in the country, subsequent to the institution of this suit,
further than the same shall be supported by vouchers or evi-
516 VIRGINIA.
Backhouse’s Administrator v. Jett’s Administrator et al.
dence. And the Court doth further direct the commissioner to
charge the defendant, William Storke Jett, with the present
value of such of the slaves contained in the deed, of the 10th
of June, 1783, in the amended bill mentioned, and with their
issue, as are now in possession of the said defendant William
Storke Jett, and with the profits thereon, from the 7th day of
July, 1817, when the amended bill in this cause was filed, and
also with the price of the slaves contained in the said deed, or
of their issue, who may have been sold, or with the value of
those otherwise disposed of, at the time when disposed of, to-
gether with interest on such price or value, to be calculated from
the said 7th day of July, 1817.
NoTE.—The question of the liability of a fraudulent donee of personalty, for
hires and profits, was considered by the court of appeals, in the late case of Blow
v. Maynard, 2 Leigh, 29. The court determined that the donee was responsible
for the hires and profits, but a very slight examination of that case will, it is be-
lieved, lead to the conviction, that the above opinion of the Chief Justice, so far
from being impugned, is strengthened by the opinion of the judges delivered in
Blow v. Maynard. The points of dissimilitude between the two cases, are very
striking. In Blow v. Maynard there was evidence that convinced, at least one of
the court, that the bill of sale of the personalty (slaves) was antedated, which is
in itself a very cogent circumstance, to show the fraudulent intent with which it
was executed. The nominal purchaser is treated by the court as a donee, be-
cause, although the instrument conveying them, purported to be a bill of sale,
there was no tittle of evidence to show, that any valuable consideration had ever
passed. It was executed by a party greatly embarrassed at the time, to a maiden
aunt of the debtor’s wife, who was a member of his family, and the pretended
sale was not accompanied with any change of possession, and the debtor con-
tinued in possession of them, up to the period of his death, which occurred four
years afterwards. The case was very much like that of Edwards v. Harben, re-
ported in 2 T. R., cited ante, except that it was a much stronger one against the
pretended vendee, and the decision of the court accorded with the determination
of the court in Edwards v. Harben, viz; that the bill of sale was fraudulent, and
void as to creditors, and that the nominal vendee was accountable for the slaves
thereby conveyed, and their increase, hires, and profits, accruing since the death of
the vendor, (the slaves having then passed into her possession, and never having
been under the control, or in the possession, of the administrator,) as executrix
in her own wrong, in like manner as a rightful executor would be accountable.
The question of the liability of the heir, for the rents and profits of the real
MAY TERM, 1s21. 517
The United States v. P. T. Shelton & Co.
estate, descended to him, was also involved, and was elaborately discussed by the
judges. Two judges, in a court consisting of three, decided, that the heir was not
accountable for the rents and profits, but from the date of the decree; and CARR, J.,
while he expressed some doubt of its correctness, seemed to acquiesce in the
decision.—[Editor.]
THE UNITED STATES v. P. T. SHELTON & Co.
Before Hon. JOHN MARSHALL, Chief Justice of the United States.
Where a partnership firm, being indebted to the United States for duties, makes
an assignment of all their effects for the payment of their debts, for which the
social fund is inadequate, this is an act of insolvency, quoad the social fund,
under the act of congress, which gives the United States the preference to
other creditors, “in all cases of insolvency:” and it seems, that such an assign-
ment amounts to an act of general insolvency, and that the private property of
the individual partners, will also be subjected to the payment, in the first in-
stance, of the debt due to the United States, in the event of the inadequacy
of the partnership fund. -
MARSHALL, C. J.-In this case, P. T. Shelton & Co., consist-
ing of P. T. Shelton, and Walter Shelton, being indebted to the
United States for duties, made a voluntary assignment of all
their effects for the payment of their debts. Walter Shelton,
was in possession of some estate in his private character, which
he afterwards conveyed for the payment of his private debts,
The United States have filed their bill, claiming priority out
of the social fund, and have also, in a supplemental bill, claimed
priority out of the private fund. The controversy is, between
the creditors under the first and last deed. Those under the
first deed, contend, that its execution was not an act of insol-
51s VIRGINIA.
The United States v. P. T. Shelton & Co.
vency, inasmuch as one of the partners remained solvent. The
creditors under the second deed insist, that the elaim of the
United States, if it can now be asserted, ought to be charged on
the first deed.
Some other questions have been made in the cause, but they
are contingent questions, depending on the manner in which the
first shall be decided.
The act of congress gives a preference to the United States,
“in all cases of insolvency.” And these “shall be deemed to
extend, as well to cases in which a debtor, not having sufficient
property to pay all of his, or her debts, shall have made a volun-
tary assignment thereof, for the benefit of his, or her creditors,”
“as to cases in which an act of legal bankruptcy shall have been
committed.”(1) }
P. T. Shelton & Co., executed their bond to the United States,
as partners, for a partnership debt. In that character, they were
the “ debtor” of the United States. In that character, they had
not “sufficient property to pay all their debts.” In that cha-
racter, they “made a voluntary assignment of all their property
for the benefit of their creditors.” This would, I think, have
been “an act of legal bankruptcy,” under the act of congress,
passed afterwards on the subject, as well as under the bankrupt
laws of England, and would, probably, have constituted an act
of bankruptcy, under any state law, which might exist at the
time. Of this, however, I am not certain. I cannot, therefore,
say positively, that the question, whether this assignment is an
act of insolvency, under the act of congress, derives any illus-
tration from the reference it makes to “an act of legal bank-
ruptcy;” though I am inclined to think it does. But be this as
it may, I am disposed to think, that on the mere reason of the
case, it is a fair exposition of the words of the act of congress,
to consider it as an act of insolvency. It was an alienation of
that whole fund, which was immediately, and in the first in-
stance, chargeable with this debt. Had a commission of bank-
(1) I Story's Laws U. S., ch. 74, § 5. page 465–LEditor.]
MAY TERM, 1821. 519
The United States v. P. T. Shelton & Co.
ruptcy been sued out, the debt of the United States, being a
partnership debt, would have been paid out of the social fund ;
and recourse would not have been allowed against the private
fund, till the Social fund was exhausted, or shown to be inade-
quate to the satisfaction of the debt. It seems to be the dictate
of justice, that partnership transactions should be charged in the
first instance, on the partnership fund, and private transactions
on the private fund, when there is not enough for the payment
of all.
I shall, therefore, direct the trustees, under the first deed, to
pay the debt due to the United States, with liberty to apply to
the Court, should that fund prove insufficient.(2)
(2) See a summary of the cases, decided by the supreme and circuit courts of
the United States, involving the question of the priority of the United States,
arising under the insolvent laws. 1 Con. Rep. 430, and 6 Con. Rep. 603. See
also a very interesting decision on the subject, in the second volume of these
Reports, in the case of The United States v. The Marshal of the District of
North Carolina.-[Editor.] -
circuit court of the vinited states.
VIRGINIA, NOVEMBER TERM, 1821.
IBIEFOR.E.
Hox. JoHN MARSHALL, Chief Justice of the United states.
#"
JAcoB v. THE UNITED STATEs.
In England, where a penalty is given by statute, and no remedy for its recovery
is expressly given, debt lies, and, it seems, that this principle is equally ap
plicable here. - -
It is a rule of law, that a statute, applicable in its terms to particular actions,
cannot be applied by construction, to other actions, standing on the same
Irea SOIle - -
An action of debt, founded upon an act of congress, is brought to recover a pe.
nalty, in which the declaration charges, that the defendant “ did forcibly rescue,
or cause to be rescued, from the said collector, or one of them, the said spirits,”
&c., adopting the phraseology of the act. Held: That, although the offence
might have been stated with more precision, and, although the declaration might
have been held ill, on special demurrer, yet it is a defect of form merely,
which after judgment, is cured by the Statute of Jeofails.
An action of debt to recover a penalty, is a “civil cause,” within the meaning of
the 9th section of the judicial act, from which a writ of error lies from the dis-
trict court, to the circuit court of the United States.
A demurrer to evidence, supposes that evidence to be already admitted, and no
objection can then be taken to it, on the ground that it is inadmissible. Where
NOVEMBER TERM, 1821. 52 i
Jacob v. The United States.
incompetent testimony is admitted, the proper remedy is, by a bill of excep-
tions. If the party declines taking this course, and demurs to the evidence,
he waives all objection to its admissibility, and places his cause on its suffi-
ciency to establish the fact in controversy.
A party, who demurs to evidence, is bound to admit every conclusion that may
fairly be deduced from it.
The rule that secondary evidence is inadmissible, when primary evidence is attain-
able, though a sound general rule, is subject to some exceptions where general
convenience requires it. Proof, for example, that an individual has acted
notoriously as a public officer, is prima facie evidence of his character, without
producing his commission or appointment.
WRIT of error to a judgment of the district court at Rich-
mond. * >. -
The United States brought an action of debt, and obtained a
judgment in the district court at Richmond, against the plaintiff
in error for $500, and their costs. This suit was brought to
recover a penalty for an alleged violation of the act of congress,
of the 21st of December, 1814, [2 Story’s L.” U. S. ch. 168,
p. 1439, Repealed.] entitled “an act to provide additional reve-
nue, for defraying the expenses of government, and maintaining
the public credit, by laying duties on spirits, distilled within the
United States, and territories thereof, and by amending the act
laying duties on licenses to distillers of spirituous liquors.”
The 9th sec. of that act, provides that if any person shall forcibly
rescue, or cause to be rescued, any spirits, still, boiler, or other
vessel, after the same shall have been seized by the collector,
the person so offending shall, for every such offence, forfeit and
pay the sum of $500. The declaration adopted the phraseology
of this section, and charged the offence in the alternative, viz:
that the defendant did forcibly rescue, or cause to be rescued
from the said collector, or one of them, &c. No objection was
made to the declaration in the court below. The defendant
pleaded the general issue of nil debet, and, on the trial, the plaintiff
offered in evidence the depositions of John Gilfillen and Benja-
jamin Harvie, sen. deputies of William Mº Kinley, collector of
internal duties in the 5th collection district of Virginia, going
to show that the said M*Kinley was the collector of internal
VoI. I.-3 U -
522 VIRGINIA.
Jacob v. The United States.
duties, and that the defendant Jacob, had applied to him, in that
character, for a license to carry on the business of distilling,
which license M*Kinley refused to issue, the defendant not hav-
ing complied with the requisitions of the act of congress. That
notwithstanding the refusal of the collector to issue the license,
until the terms of the law were complied with, the defendant
engaged extensively in the business of distilling spirits, and by
direction of their principal, the deponents repaired to the dis-
tillery of the defendant, which they found in full operation, and
seized fourteen barrels of spirits, as being forfeited to the United
States, which were forcibly rescued by the defendant Jacob.
These depositions were read in evidence, under written agree-
ments of the counsel for the defendant, that they were to be
admitted in evidence, in like manner, as if the matter thereof
was testified to in open court, by the witnesses, after being in-
formed that, if otherwise, they were entitled to any part of the
penalty, they would not, being called on as witnesses, be entitled
thereto : every objection to the credit of the witnesses, and to
their competency, except such as might be made were the wit-
nesses testifying in open court, being reserved to the defendant.
To this testimony the defendant, by his counsel, demurred, and
the jury found a verdict for the plaintiffs, subject to the opinion
of the court, on the demurrer to evidence. The court below
overruled the demurrer, and gave judgment for the plaintiffs.
The defendant obtained a writ of error to this judgment, and on
the 11th of December, 1821, the following opinion was deliv-
ered by %. ,
MARSHALL, C. J.-This is a writ of error to a judgment, ren-
dered in favour of the United States, in the district court, in an
action of debt, brought to recover a penalty, alleged to be in-
curred by the defendant, in violating some of the provisions of
an act of congress, imposing duties on spirits, distilled within
the United States. The defendant below, demurred to the tes-
timony, and now insists that the judgment ought to be reversed,
because,
NOVEMBER TERM, 1821. 523
Jacob v. The United States.
1st. The declaration is insufficient, in not alleging the offence
with precision. 2d. The testimony is insufficient, because it
does not show, that the goods received were seized by an au-
thorized officer.
1st. As to the sufficiency of the declaration.
It states the seizure, and adds, that the defendant did forcibly
rescue, or cause to be rescued, from the said collector, or one of
them, the said spirits, &c.
The plaintiff in error contends, that this charge is too vague,
and that the declaration, instead of alleging in the alternative,
that he had committed one, or another, of several different of
fences, ought to have alleged, specifically and singly, the offence
that he did commit.
The cases cited in argument, prove conclusively, that this
error would have been fatal in an indictment or information :(1)
but the counsel for the plaintiff, has shown no case, and I can
find none, in which it has been deemed fatal in an action of debt.
IHe contends, that in England, an action of debt is not brought in
such a case ; but the books say, expressly, that where a penalty
is given by a statute, and no remedy for its recovery is expressly
given, debt lies.(2) He contends with more reason, that where
different remedies are allowed, the form of the remedy adopted,
ought not to vary the case ; nor ought a court to sanction, in one
species of action for a penalty, a more lax mode of proceeding,
than is allowed by the general principles which regulate suits
for penal offences. If a precise charge would be required in an
information, there can be no reason, he contends, for dispensing
with this precision, in an action of debt, brought to recover the
same penalty, for the same offence. This is true, in reason.
But it is equally true in law, that a statute, applicable, in its
(1) See the authorities on this subject, collected in a note, to the case of the
Brig Caroline, ante, n. 2. p. 388.-[Editor.] -
(2) I Chitty’s Pleading, 105; 1 Rol. Ab. 598. pl. 18, 19. President and Col-
lege of Physicians v. Salmon, 1 Ind. Raym. 682. The form of the action is not
given by the statute, on which this prosecution was founded, but the fines, pe-
nalties, and forfeitures, incurred by force of the act, might be sued for, by bill,
plaint, or information. § 21-[Editor.]
524 VIRGINIA.
Jacob v. The United states.
terms, to particular actions, cannot be applied by construction,
to other actions standing on the same reason. But the applica-
tion of such statute, to an action which it expressly comprehends,
cannot, on that account, be denied.
Upon this principle, it is contended on the part of the United
States, that the Act of Jeofails, applies to this declaration, and
cures the fault which has been assigned in it. -
The 32d section of the judicial act, enacts, “ that no sum-
mons, &c., or other proceedings in civil causes, in any of the
courts of the United States, shall be abated, arrested, quashed,
or reversed, for any defect, or want of form, but the said courts,
respectively, shall proceed and give judgment, according as the
right of the cause, and matter in law, shall appear unto them,
without regarding any imperfections,” &c., except such as shall
be alleged as causes of special demurrer. [Judicial Act of 1789.
Story’s L. U. S., vol. i. ch. 20. § 32. p. 66.]
Is the defect in this declaration, an error of substance, or of
form 2 The act of congress, vol. iv. page 730, § 9, describes
the offence in the very words of the declaration. The penalty
is incurred, by any person who “shall forcibly rescue, or cause
to be rescued, any spirits, &c., after the same shall have been
seized,” by any collector. The offence is equally consummated,
and the penalty equally incurred, by rescuing, or causing to be
rescued, from any collector whatever, any spirits, &c., which
he had previously seized. It might have been more technically
correct, to have alleged the offence in the declaration, with more
precision, and this declaration might have been ill, on a special
demurrer. But if the defendant waives this exception, by going
to trial on the fact of rescue, the defect appears to me, to be
cured by the statute. The defect seems to me, to be a defect of
form, whenever the defendant must, of necessity, be guilty of
a breach of the law, and have incurred the penalty for which
the suit is brought, if the allegation in the declaration be true.
This seems to me, to constitute the difference between form and
substance. The defendant has a right to insist on a precise state-
ment of the offence with which he is charged, that he may know
NOVEMBER TERM, 1821. 525
Jacob v. The United States.
how to defend himself. This right is to be exercised by a special
demurrer, and may be waived. If, instead of exercising it, he
prefers going to trial on the fact, and it be found against him,
the only question of substance, as it seems to me, which can
arise upon the "record, is, whether the fact be charged in such
terms, that if committed, the penalty of the law must be in-
curred.
If, then, the 32d section of the judicial act, applies to the
case, the defendant comes too late with his exceptions to the de-
claration. - -
That section, in its terms, applies to all civil causes, in any of
the courts of the United States. An action for debt for a penalty,
appears to me to be a “civil cause” under the 9th section of
the judicial act, which defines the jurisdiction of the district
courts. But I am relieved from a critical examination of this
question, by the circumstance that, if it be not a civil cause,
this Court has no jurisdiction over it. The 22d section of the
judicial act, under which this writ of error must be sustained,
allows it only in “civil actions.” If, then, the 32d section of
the act does not apply, because this is not a “civil cause,” the
writ of error must be dismissed for the same reason.(3) -
But the counsel for the plaintiff contends, that the statute
does not apply, for another reason. In England, a statute is not
supposed to relate to the crown, unless the king be expressly
named. I do not recollect, that this principle, which is a branch
of the royal prerogative, has ever been recognized in the courts
of the United States, nor does it appear to me, to be necessary
to inquire, in this cause, how far the principle may be applicable
in our government. I do not think it necessary to make the in-
quiry, because the judicial act does expressly comprehend the
(3) A libel against a vessel claiming forfeiture thereof, for exporting cannon,
&c., under the act of 22d of May, 1795, is a civil cause, within the meaning
of the judicial act. It is a process in the nature of a libel, in rem, and does not,
in any degree, touch the person of the offender. The United States v. La Ven-
geance, 3 Dal. 297; 1 Con. Rep. Sup. Ct. U. S., 132-[Editor.]
526 VIRGINIA.
Jacob v. The United States.
United States. It gives the courts of the Union, jurisdiction in
suits brought by the United States. The question, therefore, is
not, whether a general statute, not mentioning the United States,
shall comprehend them in its general provisions, but whether a
statute, made both for the United States, and for individuals,
shall embrace the United States, by provisions, not particularly
mentioning them, but which are adapted to them, and made in ,”
terms sufficiently comprehensive to include them. This ques-
tion is already settled in the Supreme court. -
The 26th section of the act directs, that in all causes.
brought for a penalty annexed to articles of agreement, &c.,
the court shall render judgment in case of default, demurrer,
&c., for so much as is due according to equity. This section
does not mention the United States, but it has been determined
in the supreme court to extend to them. So in the cases
to be carried by appeal or writ of error, from an inferior to
a superior tribunal, in the 21st and 22d sections of the act,
the United States are not mentioned, but those sections have
always been construed to comprehend their suits.
I think it, then, very clear, that the 32d section of the judi-
cial act extends to this case, and cures the error, if there be one,
in this declaration. This is a point on which I have never
entertained a doubt.
The second question appeared to me, at the argument, to
deserve serious consideration, and I reserved the cause, in con-
sequence of doubts which I then entertained upon it. Subse-
quent consideration has removed those doubts, and I now think
the judgment of the district court correct on the demurrer to
evidence, as well as on the sufficiency of the declaration.
It was very properly observed, by the attorney for the United
States, that a demurrer to evidence, supposes that evidence
to be already admitted. If the testimony be inadmissible, its
admission may be opposed ; and if the objection be improperly
overruled, the remedy is by a bill of exceptions. If, instead of
taking this course, the party chooses to admit the evidence, and
to demur to its effects, he waives his objection to its inadmissi-
NOVEMBER TERM, 1821. 527
Jacob v. The United States.
bility, and places his cause on its sufficiency to establish the fact
in controversy. The question, whether it ought to be rejected
as mere secondary evidence, is no longer to be asked, and the
cause rests upon the question, whether, being admitted, it proves
the fact in controversy.(4) If a note, or other ordinary instru-
ment of writing, have a subscribing witness, the paper cannot be
proved even by a person who saw it executed ; but if a witness,
who saw it executed, be offered, and the party to the writing,
instead of objecting to his being sworn, admits it, and demurs to
the testimony, the only question, then, seems to me to be,
whether his testimony be sufficient to convince the mind, that
the paper was executed by the person charged therewith.
There is another principle also applicable to the case. The
party who demurs is bound to admit every conclusion, which
the jury might rightfully draw from the testimony. Could the
jury in this case have rightfully concluded, that this seizure was
made by a collector of the internal revenue It seems to me,
the jury might very correctly draw this conclusion. The wit-
ness states that the plaintiff in error applied to M*Kinley, as the
collector, for a license, The conversation shows, that the plaintiff
in error had transacted business with him as collector. The
(4) Mr. Stephens, in his Treatise on Pleading, page 112, says, that a party dis-
puting the legal sufficiency of any evidence offered, or its admissibility in point
of law, may demur to the evidence; but the case cited by him from 2 H. Black-
stone, 208, does not justify this commentary. The question, whether the admis-
sibility of evidence can be considered by the court in deciding on a demurrer to
that evidence, did not arise in the case from Blackstone, nor does it appear ever
to have arisen in any subsequent case in this country, or in England. In the
Bank of the United States v. Smith, 11 Wheat. 171, [6 Con. Rep. Sup. Ct. U. S.,
261,1, JoHNson, J., in delivering the opinion of the court, said, that by the
demurrer to evidence the defendant had taken the questions of fact from the jury,
where they properly belonged, and had substituted the court in the place of the
jury, and that every thing which the jury could reasonably infer from the evi-
dence demurred to, must be considered as admitted. Since such is the effect, then
of the demurrer to evidence, it seems quite clear, that the question of the admis-
sibility of evidence, is not open on a demurrer to evidence ; its admissibility being
a question of law which it is the exclusive province of the court, as such, to
decide. See, also, The Palmyra, 12 Wheat. 1–[Editor.]
528 VIRGINIA.
1-a- –º
Jacob v. The United States.
witness, in positive terms, states him to be the collector. It is
apparent that he acted as collector, and was understood by the
plaintiff in error to be invested with that office.
But had the defendant below excepted to the testimony, in-
stead of admitting it, and demurring to it, I still think the ques-
tion ought to be decided against him.
The rule that secondary evidence shall not be admitted where
primary evidence is attainable, although a sound general rule,
has been relaxed in some cases where general convenience has
required the relaxation. The character of a public officer is one
of those cases. That he has acted notoriously as a public officer,
has been deemed prima facie evidence of his character, without
producing his commission or appointment. In the trial of the
Gordons, Leach's Crown Law, 515, this principle of evidence
was sustained by all the judges, even in a case of murder. It is
also laid down in 4 Term Reports, (Durnford & East) 366 ;
3 Term Reports, 635 ; 3 Campbell, 432 ; and in Philips's Law of
|Flvidence, 180.
The case at bar is, I think, completely within the principle of
these cases.
The judgment of the district court is affirmed with costs.
Çittttit Cottrf ºf tige Jämitti, Sºtates,
VIRGINIA, MAY TERM, 1821.(1)
IREFORE
HoN. JOHN MARSHALL, Chief Justice of the United Status.
CoATEs’s Executrix v. MUSE's Administrators et al.
A joint decree was rendered against T. M. and E. M. administrators, with the
will annexed of H. M., and his principal devisees and legatees, for a considera-
ble sum of money, being the amount of unadministered assets in their hands.
Before this decree was satisfied T. M. died, having appointed his co-adminis-
trator, his own executor, who qualified as such. The plaintiff filed her bill,
to revive the decree against E. M., both in his character of surviving adminis-
trator of H. M., and as executor of T. M. E. M. also died, without answer-
ing the plaintiff’s bill, and a bill of revivor was filed against his administrator,
and also against the administrator, de bonis mon, of T. M. These last defend-
ants having answered this bill, the court directed them to settle their accounts
(1) The three opinions, which follow, having been delivered in different stages
of the same cause, the editor has deemed it advisable to depart so far from the
chronological order, heretofore preserved in these reports, as to present them
consecutively.—[Editor.]
Vol. I.-3 X
530 - VIRGINIA.
Coates's Executrix v. Muse’s Administrators et al.
of their administration of the estates of E. M. and T. M. respectively, and also
of the administration of E. M. and T. M. of the estate of H. M., but did not
require an account of the administration, of the estate of T. M., by E. M. his
executor. The commissioner, after due notice to the defendants, proceeded to
execute the decretal order of the court, the defendants failing to attend, and
reported the proportions, by which the original decree ought to be charged on
the estates of T.M. and E. M. At the same Term to which this report was made,
the report was affirmed, and the matter thereof decreed, no counsel appearing
for the defendants. Subsequently R. B. one of the administrators, de bomis mon,
of T. M., applied for an injunction to stay proceedings under the last mentioned
decree, so far as it affected the estate of T. M., assigning various errors in the
proceedings above recited, and praying that the decree might be opened, and
the alleged errors corrected. The Court held :
1st. That there was no error in failing to direct an account of the administration
of E. M., of the estate of T. M., such an account not being called for by
plaintiff or defendants. Although in a suit against the representatives of an
original debtor, the subject may be pursued further than those representatives,
the plaintiff is not bound to do so. If E. M., as executor of T. M., is indebted
to the estate of his testator, he is not distinguishable, so far as respects the
claim of the plaintiff, from any other debtor.
2d. That the commissioner, in proceeding to act eac-parte, on the defendants fail-
ing to appear, adopted a course of very doubtful propriety. At all events, the
defendants would, on motion, be allowed to repair their fault, especially if their
non-attendance could be excused. -
3d. That there is no positive rule in this court, forbidding a report to be consid-
ered at the Term to which it is made. The general practice has been, to per-
mit a report, in any degree complex, to lie for a second term, for consideration
and exception, on the motion of one of the parties. . In plain cases, the report
is generally taken up at the first Term.
4th. That the two administrators of H. M., being also his devisees and legatees,
and having acted together in the collection, and payment of moneys, it is pre-
sumable that they arranged between themselves, their respective claims upon
the estate of their testator, and (in the absence of testimony to the contrary)
that each retained in his own hands, an equal share of the estate. And as they,
knowing the state of their own affairs, permitted a decree to be rendered jointly
against them, the just inference is, that each was bound for an equal portion
of that decree. If either had paid off the whole of the decree, he, so paying,
might have called on the other for a moiety of the decree so paid. And the
subsequent decree of this court ought, therefore, to have been against the repre-
sentatives of each, in the first instance, for a moiety only.
5th. That this decree was not a final decree, so as to preclude the court from
opening it to let in its real merits, which may have been excluded by any ex-
eusable misapprehension of the party, or error, or irregularity of the court.
MAY TERM, 1821. 531
Coates's Executrix v. Muse's Administrators et al.
MARSHALL, C. J.-In 1805, the plaintiff in this cause, insti-
tuted her suit in this Court, against Thomas Muse and Elliott
Muse, who were administrators, with the will annexed, of
Hudson Muse, deceased, and also, his principal devisees and
legatees, to obtain payment of a considerable sum of money,
due from Hudson Muse, in his lifetime, to the plaintiff’s testator.
Others of the legatees of Hudson Muse, were also made parties,
but against them, no decree was ever given. The estate of
Hudson Muse, except the sums which were disbursed in the
payment of debts, and some small portions of the legacies, which
had been paid, the amount of which is not ascertained, was re-
tained in the hands of the administrators. Their accounts were
referred, and the commissioner reported, that the sum of $7493
76, remained in the hands of the administrators, for which sum,
a decree was pronounced on the 3d of June, 1811. .
In 1817, the plaintiff filed her bill in this Court, for the pur-
pose of reviving this decree, and carrying it into effect, against
Elliott Muse, as executor of Thomas Muse, and surviving ad-
ministrator of Hudson Muse.
Elliott Muse, also, departed this life, without answering this
bill, upon which, in June 1818, a bill of revivor was filed against
Zachariah Crittenden, the administrator of the estate of Elliott
Muse, deceased, and Robert Blakey and Harry Gaines, the ad-
ministrators, with the will annexed, de bortis non, of Thomas
Muse, and against Richard Corbin, thes executor of John T.
Corbin, who was a surety in the administration bond of Thomas
and Elliott Muse, executed by them, as administrators of Hudson
Muse.
In May 1819, the defendants, Harry Gaines, and Robert
Blakey, administrators of the estate of Thomas Muse, unadmi-
nistered by Elliott Muse, filed their answer, stating, that on the
books of Elliott Muse, the estate of Thomas Muse is debited
with its proportion of the debt now claimed, and the whole is
stated to be settled with W. C. Williams, the attorney for the
plaintiff; that they had understood, that Elliott Muse ex-
532 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
ecuted a mortgage to W. C. Williams, for the security of the
debt which, through negligence, was never recorded. They,
therefore, claimed to be discharged. .
In July 1819, Zachariah Crittenden, administrator of Elliott
Muse, deceased, filed his answer, stating, that he had fully ad-
ministered, before any knowledge of the decree rendered in
favour of the plaintiff. -
At the May Term of this Court, 1820, the Court directed the
defendants, Gaines and Blakey, to settle the account of the ad-
ministration of Thomas Muse, of the estate of Hudson Muse,
deceased, and also, an account of their own administration of
the estate of Thomas Muse. The Court also directed the de-
fendant, Crittenden, to settle the account of the administration
of Elliott Muse, of the estate of Hudson Muse, and his own
administration, of the estate of Elliott Muse, before one of the
commissioners of this Court.
In October 1820, due notice having been given to the defend-
ants, the commissioner proceeded to execute this decretal order,
and the defendants having failed to attend, he reported the pro-
portions, by which the original decree ought to be charged on
the estates of Thomas and Elliott Muse. His report charges
$51.55 02, part of this decree, on the estate of Thomas Muse,
and $2338 74, the residue thereof, on the estate of Elliott
Muse. This report was filed on the 14th of October, 1820. It
states the principles of which the commissioner proceeded, in
thus apportioning the debt due to the plaintiff, and also states
some other matters, supposed by him to shed some light on the
situation of the defendants, with regard to each other. At the
November Term, 1820, this report was confirmed, and the
matter thereof decreed, no counsel appearing for the defendants.
In January 1821, Robert Blakey, one of the administrators
of Thomas Muse, deceased, applied to one of the judges of this
Court, for an injunction to stay proceedings on this decree, so far
as respected the estate of Thomas Muse, praying that the decree
might be opened, and the plaintiff have the relief to which he
MAY TERM, 1821. 533
Coates's Executrix v. Muse's Administrators et al.
might be decided to be entitled. The injunction was granted,
to continue to the first day of this Term, and the whole case now
came on to be decided on its merits.
In his bill for an injunction, the plaintiff states sundry errors:
in the proceedings and decree, for which he thinks it ought to
be opened, and set aside, and also, excuses his non-attendance
on the commissioner, and his neglect of the case in this court.
The errors alleged, are, -
1st. That the decretal order for an account, did not direct an
account of the administration of the estate of Thomas Muse, by
Elliott Muse.
2d. That the commissioner has made his report ex-parte, not
being authorized so to do, by the order under which he acted.
3d. That the court acted on the report during the term to
which it was made, instead of leaving it to the next term for
exceptions.
4th. That the decree is not warranted by the report, since it
takes no notice of a sum reported to be due from the estate of
Elliott Muse, to that of Thomas Muse, to an amount equal to
the whole sum due to the plaintiff.
These errors as assigned, will be severally considered.
1st. An account of the administration of Elliott Muse, of the
estate of Thomas Muse, ought to have been directed.
That this account might have been directed, especially as all
the parties were before the court, will not be denied. That it
ought to have been directed, is not so obvious. If Elliott Muse,
as administrator of Thomas Muse, is indebted to that estate, he
is not distinguishable, so far as respects the claim of the plaintiff,
from any other debtor. Although, in a suit against the repre-
sentatives of an original debtor, the subject may be pursued
further than those representatives, I know of no case in which
it has been decided, that the plaintiff is bound to do so.(2) In
(2) NoTE, by Chief Justice JMarshall.—It has been determined in this Court,
on full consideration, I think in a suit against Johnson's Representatives, [See
Corbet et al. v. Johnson's Heirs, ante, p. 75.] that he is not bound to do so.
534 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
this particular case, the plaintiff, in her bill, has not required,
that this administration account should be settled.
It is impossible to say what delays might attend its settle-
ment; and though the plaintiff would be bound to submit to
these delays, had she made any demand on the representatives
of Elliott Muse, in virtue of his administration of the estate of
Thomas Muse, it would be unreasonable to impose them on her,
should they be considerable, when she makes no such demand.
In the bill praying the injunction, this supposed error is more
relied on, because, as is alleged, the defendants, in their answer,
demand such account. Had this demand been really made, it
would probably have been attended to, so far as was consistent
with a just regard to the rights of the plaintiff, but might have
been disregarded without error. In such a case, the court would
be regulated by circumstances. But I understand the answer
very differently. I can discover in it no claim for this account;
nor was it claimed at the hearing. It would have been rather
an extraordinary order, had this Court directed an administra-
tion account to be taken, which was neither required by the plain-
tiff or defendant, and did not appear to be essential in the cause.
2d. The report, itself, being made by the commissioner ea:-
parte, is considered as a nullity, because it was not authorized
by the decretal order.
Undoubtedly, the decretal order directs the account to be made
up by the defendants. They are to be the actors, and the order
does not direct the commissioner to proceed ear-parte, on their
failing to appear. Of the propriety of proceeding eac-parte,
under such an order, without notice, therefore, to the defendants,
I am not perfectly satisfied. Undoubtedly, the court would, on
motion, have allowed the defendants, or either of them, to repair
their fault, especially if their non-attendance could be excused,
as it is in this case ; and would feel much disposed, even after
the report was acted on, to let in a just defence, if in its power.
3d. The court is also supposed to have erred, in taking up the
report at the first term, contrary to its own rule.
I believe no positive rule has been made on this subject. Per-
MAY TERM, 1821. 535
Coates’s Executrix v. Muse's Administrators et al.
haps one ought to have been made. There has been a practice,
and the court ought, undoubtedly, to respect its own practice.
That, to the best of my recollection is, to permit original reports,
in any degree complex, to lie to a second Term for consideration
and exception. This is generally done on the application of one
of the parties. In plain cases the report has frequently, I might
say commonly, been taken up at the first Term. I cannot pro-
nounce it an error to take up a report at the first Term ; but I
would listen with great favour to any objections made to a report
so taken up, and to any excuse for not having made those objec-
tions in the proper time, if the cause were in a situation to allow
me to listen to them. This is, undoubtedly, a case in which the
report would have been permitted to lie, if desired.
4th. The fourth error assigned is in the decree. It is, that the
whole sum is not decreed against the estate of Elliott Muse, since
that estate appears to be indebted to the estate of Thomas Muse,
in a larger sum than the plaintiff claims from both.
The representative of Eliott Muse was not required to settle
his administration of the estate of Thomas Muse, nor did he
attempt to settle it. The representatives of those two estates
were not directed to settle accounts between them, nor has either
of them made the attempt. The commissioner, however has, as
a volunteer, reported the inventory and appraisement of the
estate of Thomas Muse, and has supposed his executor to be
indebted to the full amount, whatever debts he may have dis-
charged ; and that, without regard to the answer of the defend-
ants, his administrators, in which they admit themselves to be
in possession of part of that very estate. If the court had acted
on the presumption, that this debt was actually due, its decree
would have been equally without example, and without excuse.
A much more serious objection to the decree has been made
in argument. The report, and, consequently, the decree affirming
it, is said to be erroneous in this, that it has adopted a principle
in apportioning the debt, which is not authorized by any testi-
mony before the commissioner. He has charged each adminis-
trator with the amount of his own purchase at the sale of the
536 VIRGINIA.
Coates's Executrix v. Muse’s Administrators et al.
estate, and has divided the residue of the debts equally between
them. - -
I think this objection to the report, and the decree, well
founded.
Thomas and Elliott Muse considered themselves in the cha-
racter of devisees and legatees, as well as administrators of
Hudson Muse. They acted together, so far as the Court can
perceive, in the collection and payment of moneys. There is
nothing unreasonable in the supposition, that they arranged
between themselves their claims upon the estate of Hudson Muse,
and that each retained in his own hands, computing his particu-
lar debt, as much of the estate as the other. If this is not
extremely improbable, and is not contradicted by testimony, the
situation in which the cause stood when it came before the
commissioner, a situation in which it was placed by the parties
themselves, required, that this should be assumed as the basis of
the report and of the decree.
Thomas and Elliott Muse were acquainted with their own
transactions. They must be supposed to have understood their
own situation with the estate, and with each other. Possessing
this understanding, and called upon to settle their administration
account, the report states a balance in their hands, for which a
decree is rendered, binding them equally. Had they been liable
for this debt in different proportions, the Court would have
decreed against them severally, and according to their propor-
tions. But they permit a report, stating a balance in the hands
of both, and a decree upon that report, binding them equally.
This decree constitutes a joint debt, of which either paying the
whole, could recover a moiety from the other. In the absence
of all testimony, showing that this decree ought to be satisfied
in unequal proportions, Thomas or Elliott Muse, having satisfied
it, could have called on the other for contribution, and this
demand could not have been repelled by light presumptions. I
am, therefore, of opinion, that the decree, in the actual state of
the testimony, ought to have been revived equally, and that the
MAY TERM, 1821. 537
Coates’s Executrix v. Muse's Administrators et al.
*
representatives of each of the parties, at least in the first instance,
ought to have been subjected only to a moiety of it. -
Upon these principles the decree ought to have made against
the representatives of Thomas Muse for $3746 8S, with the
interest which accrued thereon. If it is final, and beyond
the reach of the Court, it ought to stand enjoined for the
residue. If the court may now open it, the reasons for doing
so, which are stated in the bill, and have been noticed in
this opinion, and the excuse alleged in the bill for not appearing
before the commissioner, are I think, sufficient to justify its being
opened, and to induce the Court now to make the order, which
would have been made on the application of the party at the
last term. --
I think, upon authority, the decree may be now opened. The
case of Templeman v. Steptoe, reported in 1st Munford 339,
goes far in showing that this decree is not final. I had been
rather inclined to think otherwise on the reason of the thing,
but on that point, I give no opinion. I think the authorities
quoted at the bar, and especially that from 1st Wes. 205, and
that in Ambler 89,3) are strong authorities for showing that a
court of equity, may, on sufficient circumstances, open a decree,
and let in the real merits of the cause, which have been excluded
by any excusable misapprehension of the party, or irregularity,
or error of the court. I shall follow those precedents in this
case, and shall open the decree, and refer the accounts back to
the commissioner, taking care to guard the plaintiff against un-
reasonable delay.
DECREE.—The Court being satisfied that the decree pro-
nounced in the first suit, at the last Term, is erroneous in appor-
tioning on the estate of Thomas Muse, a larger part of the debt
due to the plaintiff in that suit, than ought to be charged on said
estate: and being also satisfied with the excuse made by the said
(3) Kemp v. Squire, 1 Vesey, sen., 205, and Cunynghami v Cunyngham,
Ambler, 89.-[Editor.]
VoI. I.-3 Y
538 VIRGINIA.
Coates’s Executrix v. Muse’s Administrators et al.
Robert Blakey for his non-attendance on the commissioner: and
for his failure to make his objections to the report on its return
to this court, doth open and set aside the decree, made in the
said first cause, at the last Term, and doth refer the cause to one
of the commissioners, to execute the order made on the 5th day
of May, 1820; and he is further directed to receive any proper
evidence, which may be offered to show, that any part of the
debt claimed by the plaintiff, in said first suit, has been paid, or
that it ought to be apportioned on the estates of the intestates,
respectively, of the defendants, by a different rule from that
adopted in the report of the 7th of October last. The commis-
sioner is directed to proceed ear-parte, if either of the defend-
ants shall fail to attend. And the commissioner is directed to
make his report to the Court at the next Term.
©ircuit Cottrf of the ºſmittī s*tates.
VIRGINIA, MAY TERM, 1822.
IºTBFOIRR
HoN. JOHN MARSHALL, Chief Justice of the United States.
CoATEs’s Executrix v. MUSE’s Administrators et al.
Where a decree has been entered against two executors jointly, the effect of the
decree is to charge each executor equally, whether it is so expressed, or not;
but on an application, at a subsequent time, to carry the decree into effect, if it
be shown by proof that the defendants were unequally indebted, the decree will
be revived against each, according to his liability. But the fact, that the exe-
cutors were debtors to the estate, in unequal sums, for purchases made at the
sale of the estate, is no proof of their unequal liability.
Quære: Is a joint decree against two persons, one of whom dies before the de-
cree is carried into effect within the influence of the Virginia act of assembly,
“concerning partitions, joint rights, and obligations,” (1 Rev. Co., ch. 98. § 3.)
so that it may be revived against the representatives of the deceased defendant;
or are those representatives discharged, notwithstanding the act of assembly
The exposition of the acts of the several state legislatures, is the peculiar and
appropriate duty of the state courts, and the federal courts will always feel
great reluctance in breaking the way in the exposition of such statutes, and
will not do so, unless really necessary for the decision of the cases before
them,
540 VIRGINIA.
Coates’s Executrix v. Muse’s Administrators et al.
Construction of the 60th section (Rev. Co., ch. 104.) of the act “concerning
executors,” &c. B, the executor of A, commits a devastavit of the estate of
his testator. C, the executor or administrator of B, is bound to pay the debts
due to the estate of A, before any proper debts due to B's own creditors.
Although the words of the section require the executor, or administrator of the
executor, &c., to pay what shall be due to legatees, or distributees, of the
first decedent; yet it is clear, that those debts may be paid to the eacecutor, or ---
administrator of the first decedent, as well as to his legatees, and distributees.
And this superior dignity of debts due to the first decedent, attaches as well to
the creditors of that decedent, as to his personal representative, and those
creditors may sue the representatives of the last executor or administrator, and
make him liable for the amount of their claims.
\
THIS is the same case reported supra, page 529, quod vide.
In pursuance of the decree of the 4th of June, 1821, the
commissioner made his report, and the Court, reserving to a
future day its decision, on the ultimate responsibility of the par-
ties, in December 1821, rendered an interlocutory decree, di-
recting the administrator of Elliott Muse, to pay the sum of
$3731 32 to the plaintiff, out of the assets of Elliott Muse’s
estate, unadministered by him. At the present Term, the ad-
ministrator exhibited to the Court, the copy of the record of
proceedings, in two suits then pending in a court of chancery
of the state, and moved the Court to set aside the interlocutory
decree, of December 1821, subjecting the assets in his hands,
of the estate of Elliott Muse, to the payment of the claim of the
plaintiff in this cause.
The following opinion was delivered by
MARSHALL, C. J.-The first question which arises in this
cause is : In what proportion was the debt due to the plaintiff,
originally chargeable on the estate of Thomas and Elliott
Muse 2
By the decree of this Court, at the May Term, 1811, Thomas
and Elliott Muse, administrators of Hudson Muse, deceased,
were directed to pay to the plaintiff, the sum of $7493 76, that
being the amount of the assets of Hudson Muse in their hands,
to be administered.
MAY TERM, 1822. 541
Coates's Executrix v. Muse's Administrators et al.
This decree is not expressed to be made by consent of parties;
but there is much reason to believe that such was the fact. In
general, one executor is not liable for the acts of his co-executor,
and it is certain that this Court would not have made a joint
decree against the defendants, had not an acquiescence in such
decree been expressed; or had not the Court understood, that
there would be so much difficulty in ascertaining their respective
liabilities before a commissioner, that the defendants preferred
making the adjustment between themselves. But, whatever
may have been the motive for the decree, its effect certainly was
to charge Thomas and Elliott Muse equally. It cannot, how-
ever, be doubted, that if, on an application to carry this decree
into execution, it should be shown to the Court, that the de-
fendants were unequally indebted to the estate of the deceased,
the decree would be revived against each, according to his lia-
bility. The commissioner has supposed, that this inequality of
liability is proved by the fact, that Thomas and Elliott Muse,
were debtors in unequal sums, for purchases made at the sale of
Hudson Muse’s estate. He supposes, that precisely the same
amount of debts was collected by each, and that Thomas Muse
is chargeable beyond Elliott Muse, in the sum which his pur-
chases exceed those made by Elliott Muse. This supposition,
the Court considers as inadmissible, because the defendants
would have resisted a joint decree, had they divided the out-
standing debts, without regard to their individual debts; and,
because also, it is most probable, especially since they consider-
ed themselves as entitled to the estate of Hudson Muse, that
each collected as much of the outstanding debts, as would place
him on an equality with the other. The fact, then, that they
purchased unequally at the sale, does not authorize any infer-
ence, opposed to the decree of 1811.
The entry made by Elliott Muse, as representative of Thomas
Muse, is undoubtedly satisfactory evidence, that he did not
think the estate of Thomas Muse liable to him beyond the sum
charged to it; but does not, perhaps, sufficiently prove, that
542 VIRGINIA.
Coates's Executrix v. Muse’s Administrators et al. '
the estate of Thomas Muse was indebted in that sum.(1) That
entry shows the extent of Elliott Muse’s claim, when he sup-
posed himself entitled to the decree, but cannot demonstrate the
justice of that claim. The sum charged to the estate of Thomas
Muse, however, exceeds so little a moiety of the decree, with
interest, as to make this an unimportant inquiry. I shall con-
sider Thomas and Elliott Muse, as originally liable for this
decree in Łnoieties.
The second question, depends upon the construction of the
“act concerning partitions, and joint rights, and obligations.”
Soon after the decree was pronounced, Thomas Muse died ;
and the question is, whether the decree survived, so that his
representatives were discharged at law ; or, whether it might
have been revived as against them.
At common law, the rule undoubtedly is, that a judgment or
decree against two persons, is joint and not several, that it sur-
vives against the survivor, and cannot be enforced, at law, against
the representatives of the deceased ; nor in equity, farther than
those representatives are equitably bound, in consequence of
being equitable debtors. But the legislature of Virginia, has
enacted, that, “The representative of one jointly bound with
another, for the payment of a debt, or for performance or for-
bearance of any act, or for any other thing, and dying in the
lifetime of the latter, may be charged by virtue of such obliga-
tion, in the same manner as such representatives might have
been charged, if the obligors had been bound severally, as well
as jointly.”(2)
The question is, whether this section of the act, extends to
judgments and decrees, or is confined to obligations, created by
the act of the party bound.
This question, as I understand, is now, for the first time, raised
in a court of justice.
(1) In relation to this entry, see the last opinion of the Chief Justice, in this
case, infra-[Editor.]
(2) I Rev. Code, ch. 98. § 3–IEditor.]
MAY TERM, 1822. 543
Coates's Executrix v. Muse's Administrators et al.
It is always, with much reluctance, that I break the way, in
expounding the statute of a state ; for the exposition of the acts
of every legislature is, I think, the peculiar and appropriate
duty of the tribunals, created by that legislature. Although, if
a case depending on a statute, not yet construed by the appro-
priate tribunal, comes on to be tried, the judge is under the
necessity of construing the statute, because it forms a part of
the case, yet he will yield to this necessity, only where it is
real, and when the case depends upon the statute. The reluctance
with which he yields to it is increased, when, as in this case,
the language of the act is sufficiently ambiguous to admit of
different constructions among intelligent gentlemen of the pro-
fession. In such a case, he will be particularly anxious to avoid
giving a first construction; and will avoid it, if the case can be
otherwise decided. *
“The representative of one jointly bound with another,” is
the subject of the act; and this description is, certainly, broad
enough to comprehend a person bound by act of law, as well as
one who is bound by his own act. The statute proceeds:
“May be charged, by virtue of such obligation, in the same
manner as such representatives might have been charged, if the
obligors had been bound severally, as well as jointly.”
These words may be considered as restraining the general
term used in the first part of the sentence. It is true, that the
words “such obligation,” referring, directly, to the words “one
jointly bound with another,” may very naturally have been
used in a sense co-extensive with the first words, and may,
without violence, or departure from their usual sense, be under-
stood to designate any obligation, whether created by the act of
law or of a party; but the subsequent words produce more
difficulty. The representatives of the person dying first, are
to be charged in the same manner as they might have been
charged “if the obligors had been bound severally, as well as
jointly.” à
The word “obligors,” in the last part of the sentence, was
certainly intended to be co-extensive with the words “one
544 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
jointly bound with another,” in the first part of it. These
different words were, unquestionably, introduced by the legisla-
ture, to describe the same persons and the same obligation ; but
the word “obligors” seems to me to designate, exclusively,
those who bind themselves, the actors, in creating an obligation.
Those bound by a judgment or decree, are never, I think,
denominated obligors. The following words add strength to
this construction. They are to be charged, as if the obligors
had been bound “severally as well as jointly.” Now, a judg-
ment never, and a decree very rarely, binds severally as well as
jointly. A judgment, or decree, against two, is a joint, and
never a joint and several judgment or decree ; unless, indeed,
in a decree, this quality be particularly expressed.
These phrases in the section, which are entirely adapted to
obligations created by the act of the party, satisfy me, that such
obligations, alone, were in the mind of the legislature, when the
law was framed; and I should feel no difficulty in saying, that its
provisions ought to be limited to them, were it not that the
obvious and general intention of the act would be defeated by
this construction. -
The obvious intention of the act is, that all obligations, which
are joint in their terms, should be several, as well as joint, in
their legal operation and effect. This policy is beneficial and
just to creditors, because they are not defrauded, by the death of
one of the obligors, of any part of the security for which they
originally stipulated ; and it is justice to the obligors themselves,
because it leaves the representatives of each, bound to precisely
the same extent to which the original obligor probably intended
to bind himself. The legislature stops short, without effecting
its object, if the provision does not apply to the judgment, as
well as to the contract on which that judgment is founded. It
would be strange, if, in severing that which the parties them-
selves had made joint, the legislature had intended to leave the
law in such a state as still to join, by its own operation, that
which the parties had severed, or that which the act was made
for the purpose of severing. If the legislature, when framing
MAY TERM, 1822. 545
Coates’s Executrix v. Muse’s Administrators et al.
this law, had been asked: “Do you intend, that a judgment
shall bind those jointly, and not severally, who had bound them-
selves severally, as well as jointly ; or that the judgment shall
be joint on contracts which this legislature intended to sever ?”
The answer, it is probable, would have been in the negative. It
may, then, be urged with plausibility, and, perhaps, with truth,
that this is a case in which the literal construction of an act is
opposed to its spirit, and would defeat, in part, the object of the
legislature. That it is a case in which words of some ambiguity
are used, which, construed according to their common accepta-
tion, would not reach a case within the mischief intended to be
provided against. t
I feel the force of this reasoning, but my general rule of con-
struction, and I think it a good one, is to adhere to the letter of
the statute, taking the whole together ; and I would not readily
depart from that rule in this case. It is, however, no weak argu-
ment in favour of the more liberal construction, that no mis-
chief can come from its adoption, and the consequence of a con-
trary construction, would, I think, be the multiplication of suits.
Creditors would bring, in many instances, as many actions as
there are parties to the contract on which they sue. Without
expressly adopting either construction I shall inquire whether
the one or the other may not lead to the same result.
If the act of assembly so changes the law, that this decree may
be revived against the representatives of Thomas Muse, then
those representatives would be clearly liable for one moiety of
it ; but if, in consequence of transactions subsequent thereto, or
of circumstances not known to the Court when it was pronounced,
the representatives of Thomas Muse ought to recover from
those of Elliott Muse, the sum they pay to the plaintiff, or any
part of it, then the Court would decree, in the first instance, that
the estate of Elliott Muse should pay to the plaintiff, the sum
for which they would be liable to the estate of Thomas Muse,
provided that might be done without delaying the plaintiff, or in
any manner prejudicing him. - -
If the decree survives, and could not be regularly revived
Vol. I.-3 Z -
546 - VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
-----sºmºsº
against the representatives of Thomas Muse, still the original
equity of the plaintiff against him for a moiety of the decree,
would not be destroyed. This equity may indeed be re-
butted by equitable circumstances; but those circumstances
must, I think, derive some of their force from the conduct of
the creditor. Transactions between the debtors alone, might be
a reason for decreeing in the first instance against the estate of
one of them, but not for such a postponement of the rights of
the creditor as would materially injure him.
We should be brought, then, to the same result in whichever
way the statute be construed, unless there are transactions be-
tween the parties, which ought to postpone the decree, as against
the estate of Thomas Muse, under one construction, and not
under the other. -
His counsel contends that there are such circumstances.
On the death of Thomas Muse, Elliott Muse qualified as his
executor, and has died greatly indebted to his estate. It is con-
tended that as the representatives both of Thomas and Elliott
Muse are before the court, and as the representatives of Elliott
Muse, will be accountable to those of Thomas Muse, for the
estate of Thomas Muse wasted by Elliott Muse, that this Court
will decree directly against those representatives, so far as they
are liable to the representatives of Thomas Muse. This is
undoubtedly the course of justice, and the course of the Court, so
far as it can be conformed to, without delays and perplexities
injurious to the creditor. In a plain case, the Court will never
hesitate to decree directly against a party, who is ultimately
responsible. But in a case where great delay must be encoun-
tered to establish this ultimate responsibility, the Court does not
think itself at liberty to impose these delays and difficulties on
the creditor. - * -
If Elliott Muse were still living, and the report of the com-
missioner were to be confirmed, the Court could not hesitate to
decree against him to the full amount of the debt, for he is
shown to be the debtor of Thomas Muse in a still larger sum.
But Elliott Muse is dead, and his representatives are responsi-
MAY TERM, 1822. 547
\
Coates's Executrix v. Muse's Administrators et al.
ble under any construction of the laws of Virginia, so far only
as assets have come to their hands. Whether they are respon-
sible to that extent, or not, depends upon the construction of the
60th section of the act, (1 Rev. Co. ch. 104) for regulating the
conduct of executors and administrators, and on the operation
of a paper given to Elliott Muse by William C. Williams, then
the attorney for the plaintiff. - -
The words of the act of assembly are, “The executors or
administrators, of a guardian, of a committee, or of any other
person who shall have been chargeable with, or accountable for,
the estate of a ward, an idiot or a lunatic, or the estate of a dead
person, committed to their testator or intestate, by a court of
record, shall pay so much as shall be due from their testator or
intestate, to the ward, idiot, or lunatic, or to the legatees or
persons entitled to distribution, before any proper debt of their
testator or intestate.” -
The question is, whether the priority given by this section,
extends to creditors, or is confined to the claims of the ward,
idiot, &c. and legatees or distributees of the deceased.
In the case of a ward, or of an idiot or lunatic, the question
cannot well arise ; and I am not sure that this circumstance may
not in some degree, affect the construction of the act, in its appli-
cation to the case of legatees and distributees, who are thus con-
nected in the same provision with the ward, and the idiot or
lunatic. *
There are, however, some considerations, which powerfully
oppose this construction of the act, :
The executor, or administrator, holds the estate of his testator,
or intestate, as a trustee, first for creditors, and, then, for lega-
tees, or distributees. This rule is so intermingled with all the
principles of our law, its observance is so imperiously exacted
by the most sacred injunctions of justice and morals, that the
legislature cannot be supposed to impair it, unless the language
be such, that the construction is inevitable. Express words,
only, can change the order which debts and legacies, or distri-
butive shares hold to each other. The executor of an executor,
548 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
is often the executor of the first testator. The debt due from
his immediate, to his original testator, represents the property
converted by that immediate testator, to his own use, and is
assets in his hands, first, to satisfy the claim of the creditors of
the first testator, and then, the claims of legatees. In a contest
between those creditors and legatees, all our experience, all our
legal education, every thing we derive from observation or in-
struction, informs us, that the creditors must prevail. In such
a state of things, the priority of a legatee over a creditor of the
last testator, is, by an implication so necessary as to be inevitable,
the priority of a creditor of the first testator, whose claim is so
superior in dignity, to that of the legatee, as to enable him to
wrest the property from the legatee, after it shall be delivered
to him.
The case is not materially varied, if the representative of the
administrator, or of the last testator, be not also the representa-
tive of the first.
If an executor or administrator die, indebted to the estate of
his testator, or intestate, that debt charges his estate in the hands
of his representative. It is a debt, the dignity of which de-
pends upon the law. This debt, in the regular course of things,
is to be sued for, by the representative of the original testator.
When it comes to the hands of that representative, it is assets
to be paid in the course of administration, first to creditors, and
then to legatees, or distributees. The law must be very clear,
and very positive, indeed, which would make a difference be-
tween these assets, and those which had remained unchanged,
and which came to his hands, as they came to the hands of the
first representative. If we examine the section under conside-
ration, it makes no such difference. "It does not say, that the ex-
ecutor or administrator, shall pay to the legatees, or distributees,
so much as shall be due from their testator, or intestate, before
any other debts whatever, It does not reverse the long esta-
blished order of things, and give a preference under any cir-
cumstances, to a man’s legatees, or distributees, over his own
creditors; but declares, that the executors, or administrators of
MAY TERM, 1822. 549
Coates’s Executrix v. Muse's Administrators et al.
any person, “who shall have been chargeable with, or account-
able for,” “the estate of a dead person, committed to their tes-
tator, or intestate, by a court of record, shall pay so much as
shall be due from their testator, or intestate, to the legatees, or
persons entitled to distribution, before any proper debt of their
testator, or intestate.”
The words, “to the legatees, or persons entitled to distribu-
tion,” are not connected with the word “pay,” but with the
word “due.” The law does not command, that payment shall
be made to the distributees, or legatees, but, generally, that pay-
ment shall be made of what is “ due to the legatees, or distribu-
tees of the dead person,” “ before any proper debt of their tes-
tator, or intestate.” Payment shall be made, to whom 2 The
act does not tell us, but the answer must be, to the person au-
thorized by law to receive it. This person is the representative
of the original testator, in whose hands this debt becomes assets,
not distinguishable from other assets ; not more liable than other
assets to the claims of legatees, or distributees, nor less liable to
the claims of creditors; for the law does not give any priority,
except over the proper debts of the last testator, or intestate.
For these reasons, I think it impossible to resist the convic-
tion, that this section gives a priority to debts due to the estate
of a dead person, committed to the hands of the last decedent
in his lifetime, over the proper debts of such decedent, but in-
terferes no farther with the subject.
If, then, this suit had been instituted by the representative of
Thomas Muse, against the representative of Elliott Muse, the
defendant could not, if the foregoing reasoning be just, have
resisted the claim, by setting up the payment of the proper debts
of his testator, but would have been liable, in like manner, as
if the suit had been instituted by the legatees, or distributees of
Thomas Muse, against the present defendants.
Is the defence the stronger, when made to a suit brought b
the creditors 2 I think it is not. -
The right of the creditors to bring the suit, cannot be ques-
tioned. It is every day’s practice, and has not been controvert-
550 VIRGINIA.
Coates’s Executrix v. Muse’s Administrators et al.
ed in this case. If the right to sue be admitted, and the act of
assembly, as has been already shown, attaches the superior dig-
nity it gives, to the debt, and not to the character of the plain-
tiff, it follows, that if the debt be still due, and its priority has
not been lost by any act of the creditor, it is of superior dig-
nity to any proper debt of Elliott Muse, and the assets, which
have been disbursed in the payment of such debts, have been
wasted, and must still be accounted for, by the representative of
Elliott Muse.
DECREE.—The defendant, Zachariah U. Crittenden, adminis-
trator of Elliott Muse, exhibited to the Court the copy of the
record of the proceedings, in a suit now pending in the supreme
court of chancery for the Williamsburg district, in which Richard
M. Segar, sheriff and committee of the estate of Henry Heffer-
nan, deceased, and others are plaintiffs, and the said Crittenden,
as administrator of Elliott Muse and others, are defendants, and
moved the Court to set aside the decree rendered in this cause,
on the 19th day of December, 1821, subjecting the assets in his
hands, of the estate of Elliott Muse, for the payment of the
claim of the plaintiff in this cause, And the Court, on consi-
deration of the said motion, doth order, that the same be over-
ruled. And the Court being of opinion, that the said decree of
the 19th of December, 1821, ought to have directed, that the
sum of money therein mentioned, and decreed to be paid by the
said defendant, Zachariah U. Crittenden, administrator of Elliott
Muse, out of the assets of his intestate in his hands to be admi-
nistered, if not paid out of the assets of said intestate in his
hands to be administered, should be paid out of the proper goods
and chattels of the said Crittenden, doth adjudge, order, and
decree, as additional to, and amendatory of the said decree, of
the 19th of December, 1821, that the sum of money therein
decreed to be paid, by the said Crittenden, administrator of El-
liott Muse, if the same be not levied of the goods and chattels
of the said Elliott Muse, in his hands to be administered, be
levied of the proper goods and chattels of the said Crittenden.
Çirtuit Cotitt of tipt Jāmitti'ſ $fateº,
VIRGINIA, NOVEMBER TERM, 1823.
B EFORE
HoN. JOHN MARSHALL, Chief Justice of the United States.
CoATEs’s Executrix v. MUSE’s Administrators et al.
There having been a joint decree in 1811, against E. M. and T. M., administra-
tors of H. M., and one of the said administrators, T. M., having died, the
survivor, E. M., was appointed his executor. To secure to the plaintiff in the
decree the payment thereof, the surviving administrator, E. M., executed in
1813, a deed of trust, or mortgage, on a tract of land, which deed the attor-
ney of the plaintiff accepted, and acknowledged under his hand, that the said
E. M. was entitled to the benefit of the decree. The said deed, though held
by the plaintiff’s attorney, was never recorded, nor enforced by him, but on
the contrary, the said E. M. sold the land, and he then died. On the books
of E. M., as executor of T. M., were found two entries, by which he gave
credit to himself, as such executor, for T. M.'s proportion of that decree, which
entries amount to an admission, that the estate was no further liable, and that
he, E. M., should pay the residue of the decree. Held: 1st. That as E. M.
sold the land, and did not account for the proceeds, he became liable to the
plaintiff in the same sum, as if the transaction had never taken place. 2d. As
to the liability of the estate of T. M. to the plaintiff. A decree, though not
assignable at law, is yet transferrable for valuable consideration, and a court of
552 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
equity will support the transfer. If, therefore, the estate of T. M. had been
represented by any other person than E. M., and such representative had, with-
out knowledge of the fraudulent sale of the land, paid to E. M., the transferree
of the decree, his proportion of the decree, the court would have sustained
the payment: but as no money was really paid to the creditor, by the repre-
sentative of T. M., and as E. M., who committed the fraud, was the executor
of T. M., the creditor ought not (notwithstanding the entry of the credit
aforesaid,) to lose his recourse against the estate of T. M. But, 3dly. As it
was ascertained by the report of a commissioner, that E. M., as executor of
T. M., was indebted to the estate of the latter, in the full sum claimed by the
plaintiff, from the estate of T. M., and as the debt so due from the estate of
E. M., to that of T. M., is one of the first dignity, under the act of assembly,
the plaintiff should stand in the place of T. M.'s representative, and be consi-
dered as a creditor of the highest dignity, and obtain a decree directly against
the representative of E. M., for the full amount due from that estate, to T. M.'s
estate.
4thly. As to the balance (over and above the aforesaid sum due to T. M.'s estate)
of the decree of 1811, now to be decreed against the representative of E. M.
The effect of the agreement between the attorney of the plaintiff, (with the
concurrence of his agent, or attorney in fact,) was to transfer the decree to
E. M., and to put the mortgage as a substitute for the decree. The plaintiff
could not, thereafter, proceed against either E. M., or T. M., on the decree,
but on the mortgage alone. The debt, therefore, lost its dignity, and became
as between the creditor, and representatives of E. M., a debt by specialty
alone, and is to be postponed, in decreeing against those representatives, to
other debts of greater dignity than specialties.
MARSHALL, C. J.-On the 4th day of June, 1821, the Court,
considering a bill filed in January 1821, as being both a bill
enjoining the decree rendered at the November Term, 1820,
and a petition for a rehearing, opened the decree rendered in
November 1820, and referred the accounts to the commissioner
for a resettlement, with instructions to settle, also, the adminis-
tration of the estate of Thomas Muse, by Elliott Muse.
In December 1821, the commissioner made his report, which
was taken up a few days thereafter, and a decree pronounced,
directing Z. U. Crittenden, administrator, &c., of Elliott Muse,
deceased, out of the assets of his testator, in his hands to be
administered, to pay the plaintiff the sum of $3731 32, with
interest on 33171 42, from the 20th of November, 1821, till
NOVEMBER TERM, 1823. 558
Coates's Executrix v. Muse's Administrators et al.
paid ; and the Court reserved, to a future day, its decision on
the ultimate responsibility of the parties. .
In May Term, 1822, the said defendant, Z. U. Crittenden,
administrator, &c., produced two records of suits, pending
against him as administrator, in the state court, in Williamsburg,
on claims of the highest dignity, and prayed, that the interlocu-
tory decree of the preceding Term, might be set aside. The
Court overruled this motion, and directed that decree to be
satisfied out of the private estate of the said Crittenden, if assets
of his intestate could not be found. *,
The cause comes on again to be heard on all the papers, and
it is contended by the defendant, Crittenden, administrator, &c.,
of Elliott Muse, that the original decree, pronounced, in 1811,
against Elliott Muse and Thomas Muse, administrators of Hud-
son Muse, has lost its dignity, as against the representatives of
those defendants, in consequence of a receipt and agreement, in
these words: “Elliott Muse, Esq., has adjusted with me, by
securing the same to be paid, the amount of the decree against
the administrators of Hudson Muse, deceased, and is entitled to
the benefit of the decree, as to that part of the debt, but not as
to the house and lot in Urbanna, which is the fund for payment
of the residue of the plaintiff’s demand.”
- “WM. C. WILLIAMs,
“ 18th March, 1813. Attorney for plaintiff.”
It was admitted before the commissioner, by the agent for the
plaintiff, that a deed of trust or mortgage was, about this time,
executed by the said Elliott Muse, to secure the payment of the
decree, but that the said deed was held by the plaintiff’s attor-
ney, was never recorded or enforced; and it is admitted by Z.
U. Crittenden, that Elliott Muse afterwards sold the land. .
The principle on which the decree of November 1820, was
opened in May Term 1821, was that the decree of May 1811,
ought to be apportioned equally on the estates of Elliott and
Thomas Muse, unless the representatives of one of those estates,
could show that the other ought to be charged with more than a
Vol. I.-4 A -
554 VIRGINIA.
Coates's Executrix v. Muse’s Administrators et al.
moiety of that decree. That principle is still believed to be
correct. g
The accounts, as now exhibited to the court, furnish no evi-
dence on this subject, other than two entries on the books of
Elliott Muse, as executor of Thomas Muse, in which he credits
himself as follows.
“ 1813, March 9th.
To cash in discharge of testator’s proportion
of decree, Coates’s Executrix v. Muse’s admin-
istrators, including interest and costs of suit, . $241.1 54%
“ June 19th. !
To amount of your proportion of a balance
not charged in a former account of a decree in
fed. ct. Muse’s administrator v. Coates’s execu-.
tors, . . . . . . . . $1602 90”
The respective liabilities of Elliott and Thomas Muse, having
been known only to themselves, this is the only testimony now
attainable on this point. The entries of Elliott Muse cannot
increase the liability of Thomas Muse, but may diminish it. If,
therefore, these two sums which were obviously intended to
comprise Thomas Muse’s part of the decree be less than a moiety
of the decree with interest and costs, these entries amount to an
admission on the part of Elliott Muse, that the estate of Thomas
Muse was not liable farther, and that he ought himself to pay
the residue. This conclusion is rendered irresistible, by the
circumstance, that at the date of the last entry, Elliott Muse
considered the whole decree as being transferred to him by the
paper of the 18th of March, 1813, executed by the attorney of
the plaintiff, and of course, charged the estate of his testator with
the whole sum for which it was liable on the decree.
The deed of trust, which is supposed to be referred to in this
paper of the 18th of March, 1813, is prepared in blank in one
handwriting, and afterwards filled up in another. It is dated
the 1Sth day of March, 1811, three months before the decree was
NOVEMBER TERM, 1823. 555
Coates’s Executrix v. Muse's Administrators et al.
rendered, and is filled up to John Gray, agent for the plaintiff.
It was, obviously from the expressions of the deed, filled up in
the year 1813, before the 3d of June, and was probably filled up
and executed on the 18th of March, 1813, when the receipt or
assignment was executed. -
This deed having never been recorded, and Elliott Muse
having sold the land, and received the money, for which he has
never accounted, it is obvious, that he must remain liable to the
plaintiff in the same sum as if this transaction had never taken
place. Were Elliott Muse alive and solvent, there could be no
difficulty in decreeing him to pay the whole sum. But he is
dead insolvent, and the whole difficulty of the case consists in
determining, how far the representative of Elliott Muse is
chargeable with a devastavit for having paid debts of inferior
dignity to the decree of the 3d of June, 1811.
A decree is not, in law, assignable, but is like any other chose
in action, transferrable for a valuable consideration, and a court
of equity will support the transfer. If, therefore, the estate of
Thomas Muse, had been represented by any other than Elliott
Muse, and such representative had, without knowledge of the
fraud, paid his part of the decree to Elliott Muse, this Court
would unquestionably have sustained the payment. But as no
money was really paid by the estate of Thomas Muse, nor any
injury sustained by his estate, in consequence of this credit
in his account by Elliott Muse; as the person committing the
fraud was the representative of Thomas Muse, it seems unrea-
sonable to deprive the creditor of his recourse against Thomas
Muse, for so much as was equitably due from his estate. Had
Elliott Muse never made this entry in his accounts, it would be
admitted, that the liability of Thomas Muse remained ; and I
cannot think, that this entry changes his liability, unless it
should appear that he has sustained an injury from it.
The question of dignity is unimportant in this part of the
case, because the estate of Thomas Muse is solvent.
In a suit instituted in a court of chancery for the state, an
account was taken of the administration of Elliott Muse, of the
356 VIRGINIA.
Coates's Executrix v. Muse's Administrators et al.
estate of Thomas Muse, and the balance reported against the
executor, is $314 543. But this report is understood to credit
the executor for the sum charged, as being paid to the executor
of Coates. Those sums are, therefore, to be added to this ba-
lance, and they will leave Elliott Muse indebted to the estate
of Thomas Muse, in the full sum now claimed by the plaintiff
from the estate of Thomas Muse. This debt, from the repre-
sentative of Elliott Muse, to the estate of Thomas Muse, is,
undeniably, a debt of the first dignity.
It is contended, on the part of the representative of Thomas
Muse, that as all the parties are before the Court, the represen-
tative of Elliott Muse, ought to be decreed to pay to the plain-
tiff, the sum due from the estate of Thomas Muse: and the Court
is of that opinion. The plaintiff, therefore, is in the place of a
representative of Thomas Muse, as to that part of the decree,
and is in virtue of the rights of that representative, a creditor
of the highest dignity. Z. U. Crittenden, the administrator of
Elliott Muse, deceased, will, therefore be directed to pay to the
plaintiff, the sum of $ , that being the sum the plain-
tiff has a right to demand from the estate of Thomas Muse, and
which is due to that estate, from the representative of Elliott
Muse.
The decree which ought to be pronounced against Z. U. Crit-
tenden, the administrator of Elliott Muse, deceased, for the resi-
due of the decree of the 3d of June, 1811, remains to be considered.
It is contended by the plaintiff, that the whole transaction be-
tween William C. Williams, the attorney of the plaintiff, and
Elliott Muse, on the 18th of March, 1813, ought to be consi-
dered as a nullity, in consequence of the fraud committed by
Elliott Muse, in selling the mortgaged property, and converting
the money to his own use.
I cannot concur in this opinion.
There is certainly no positive evidence of the concurrence of
the plaintiff’s agent, in the arrangement of the 18th of March,
1813, but when it is recollected, that the name of that agent is
introduced into the deed of mortgage, that the agent himself,
NOVEMBER TERM, 1823. 557
Coates’s Executrix v. Muse's Administrators et al.
states the deed to have been executed, about the time the paper
of the 18th of March was signed, that there must have been a
free course of communication between the attorney at law, and
the agent, I must conclude, that the agreement of the 18th of
March, was made with the knowledge and consent of the
agent.
The effect of that agreement was, to take the deed of mort-
gage in satisfaction of the decree, and to transfer the decree
itself, so far as relates to the question now before the Court, to
Elliott Muse. The motives for making this arrangement were,
at the time, satisfactory to both parties, and the Court has no
right to suppose they were inadequate. The contract was, then,
at the time, a fair and valid contract, the obligation of which,
neither could controvert. s
Had an attempt been made, immediately to enforce the de-
cree of 1811, the Court would not have enforced it ; and if the
plaintiff could have proceeded without the aid of the Court, she
would have been enjoined. Had the deed been recorded, or
had Elliott Muse abstained from selling the property, the plain-
tiff could never, in the face of the agreement of March 1813,
have proceeded on the original decree. She could only have
proceeded on the mortgage. Had the mortgaged property been
insufficient to satisfy the decree, the plaintiff could not have
proceeded against Elliott or Thomas Muse, or their representa-
tives, for the sum remaining unsatisfied. The neglect of the
plaintiff to record her mortgage, and the fraud of Elliott Muse,
in selling the property, and misapplying the money, leave El-
liott Muse responsible on the deed of Mortgage, but not on the
original decree. The debt, therefore, is a debt by specialty only;
and as the suits instituted in the state court, are for debts of
higher dignity, than a debt by specialty, the claim of the plain-
tiff, for the debt due from Elliott Muse must be postponed, to
the claims of some of the plaintiffs in the state court.
The decree of the third of June, 1811, comprehended the
sum of £429 9s., equal to $1431 50, not then collected, but in
suit. This sum was considered as assets in hand, because the
558 - VIRGINIA.
Coates’s Executrix v. Muse’s Administrators et al.
parties expressed a conſidence, that it would be collected, and
because the counsel for the plaintiff assured the Court, of an
arrangement being made, by which the decree would not be
enforced, till this money should be received. Under these re-
presentations, the Court gave, improperly, a decree for the
- whole sum, as if the assets had been in the hands of the admi-
nistrators. If this money has not been collected ; and if the
failure to collect it, arises from no default of the administrators
—if due diligence has been used, this error in the decree of
1811, ought not to prejudice them, but ought now to be cor-
rected.
FINAL DECREE.—This cause came on to be further heard, on
the papers formerly read, and two abstracts of records filed by
the defendants, and marked, respectively, Z. and Y., and was
argued by counsel; on consideration whereof, the Court, confirm-
ing the report of commissioner Barton, of the administration of the
defendant, Robert Blakey, on the estate of Thomas Muse, and
the first statement of the said commissioner, of the administra-
tion of the defendant, Z. U. Crittenden, on the estate of Elliott
Muse, and being of opinion : 1st. That the outstanding claims,
amounting to £429 9s., which were considered in rendering the
decree of the 3d of June, 1811, as part of the assets of Hudson
Muse’s estate, in the hands of his administrators, were not
assets, as they had not been reduced to possession, and that they
ought not to be considered assets, chargeable to the defendants,
or their intestates, because they have not been collected, and
the failure to collect them is not imputable to culpable neglect,
and, therefore, that the amount of those claims ought to be de-
ducted from the said decree of 3d of June, 1811, and that the
plaintiff is entitled to an assignment, without recourse, from the
administrator of Elliott Muse, of the said claims.
2dly. That the estate of Thomas Muse, is still responsible to
the plaintiff, for that part of said decree of the 3d of June,
1811, that ought to have been paid by the said Thomas Muse,
but that the estate of Thomas Muse is not responsible for more
NOVEMBER TERM, 1823. 559
Coates’s Executrix v. Muse's Administrators et al.
than the two sums of $241.1 54, of the 13th of March, 1813,
and $1602, of the 19th of June, 1813, charged to that estate,
by Elliott Muse, in his account of his administration, on the
estate of Thomas Muse, as the proportion of the said decree,
payable by that decree.
3dly. That as it manifestly appears, that the estate of Elliott
Muse, is, on account of his administration of the estate of Thomas
Muse, indebted to that estate in a larger sum than is chargeable
on Thomas Muse’s estate, for the proportion of the plaintiff’s
claim, payable by Thomas Muse; and the responsibility of El-
liott Muse’s, to Thomas Muse’s estate, being a debt of the first
dignity, the estate of Elliott Muse should, as far as the assets
extend, be, in the first instance, subjected to the payment of the
plaintiff’s claim, to the exoneration of the estate of Thomas
Muse. And it appearing by a statement made, from the papers
in the case, (which statement is marked “statement for final
decree,” and is received as a statement made by a commissioner,)
that the balance due the plaintiff, after deducting the said claims
of £429 9s., and subsequent payment is $4735 32, with interest
from 20th November, 1821, till paid ; that the responsibility of
the estate of Thomas Muse, for the said two sums of $241.1 54,
and $1602, in 1813, exceed the said balance due the plaintiff;
that the amount of assets, for which the administrator of Elliott
Muse is chargeable, is $3608 35 with interest, on $3218 36,
from 20th November, 1821 : The Court doth adjudge, order,
and decree, that the defendant, Z. U. Crittenden, administrator,
do, out of the assets of his intestate, &c., if so much thereof
he hath, and if not, out of his own proper goods and chattels,
pay to the plaintiff, $3608 35 with interest, on $3218 36, from
20th November, 1821, till paid, and one moiety of the costs of
this suit : that the defendant, Robert Blakey, administrator of
Thomas Muse, do, out of the assets of his intestate in his hands,
&c., if not, then out of his own proper goods and chattels, pay
to the plaintiff, the sum of $1126 97 with interest, from 20th
November, 1821, till paid, and the other moiety of the costs.
And the Court doth further order, &c., that Z. U. Crittenden,
560 VIRGINIA.
Coates's Executrix v. Muse’s Administrators et al.
administrator of Elliott Muse, survivor of Thomas and Elliott
Muse, administrator, with will annexed, of Hudson Muse, do
assign to the plaintiff, or her duly authorized attorney, the said
claims, evidenced by the said abstracts of records, marked Z
and Y: but the assets to be without recourse against Crittenden.
And liberty is reserved to the plaintiff, to apply to the court for
a further decree against the administrator of Thomas Muse, for
so much of the amount hereby decreed to be paid by the admi-
nistrator of Elliott Muse, as the plaintiff may fail to obtain on
that decree, from that administrator, or those responsible for his
due administration of the assets of his intestate.
INDEX.
ACTIONS, LOCAL, TRANSITORY. -
I. An action for a trespass committed on lands, is a local action, and the
United States circuit court for the district of Virginia, cannot take cog-
nizance of a trespass committed on lands lying within the United
States, but beyond the limits of the district, although the trespasser be
a resident of Virginia. Livingston v. Jefferson. 203.
II. The distinction between transitory and local actions is, that the former
may have accrued any where, and those only are considered local,
where the cause of action is necessarily local. Ibid.
III. Actions of trespass on lands, are classed with those actions which de-
mand the possession of land, and with actions of waste, which are
local : whilst actions founded on contracts respecting lands are transi-
tory, and may be sustained wherever the defendants are found. Ibid.
IV. Although this distinction is merely technical, and Lord JMansfield at-
tempted to abolish it, and to establish as the proper rule, the distinction
between such actions as operate in rem, and such as merely sound in
damages, [and if his opinion had prevailed, the action of trespass on
land would have been deemed a transitory action,] yet the old distinc-
tion is too firmly established to be now shaken. , Ibid.
ADMINISTRATORS. See ExecutoRs AND ADMINISTRATORs.
ADMIRALTY. See EMBAngo LAws, NoN-INTEncourse Laws, PRIZE or
WAR, DUTIEs on IMPorts, &c. Evrpen CE VIII., Bottomſ Ry.
I. The admiralty courts of the United States may proceed, under their ge-
neral powers, in every case in which they are not restrained from the
exercise of those powers by statute. United States v. Schooner Little
Charles. 380. - +
Vol. I.-4 B
562 - INDEX.
AGENT. See Paiscipal AND AGENT.
ALIENS. See EschEAT.
AMENDMENTS.
Motions to amend the pleadings in a cause, either at law or in equity, are
always addressed to the sound discretion of the court; and this legal
discretion seems to acknowledge no other limits than those which are
, required by the purposes of justice, and for the restraint of gross and
inexcusable negligence. But a defendant in equity will not be per-
mitted to amend his answer, after the opinion of the court and the tes-
timony have indicated in what respect it may be modified so as to effect
his purpose. Calloway v. Dobson. 119.
ANSWER.
I. See AMENDMENT. ..!
II. See BILL AND ANswer.
ASSETS. See Exiecutors AND ADMINISTRATons, V
|
ASSIGNEES OF A BANKRUPT.
The assignees of a bankrupt in England, cannot maintain an action at
law, in their own name against a debtor of the bankrupt in Virginia,
and the action is only maintainable in the name of the bankrupt him-
self. Though the right to personal property may be regulated by the
laws of the domicil, as in the case of the bankrupt laws of England,
and though the equitable rights of the assignees, acquired under those
laws, will be respected in our courts, yet the right of action must be
regulated by the law of the forum in which the suit is brought: And
the transfer of a bankrupt's effects in England, being an assignment
merely by operation of law, and not by the act of the party, is not such
an assignment of the legal title to the assignees, as will enable them to
maintain an action in their own name in the courts of Virginia. Blane
v. Drummond, 62.
ASSIGNMENTS.
T. See OFFSET. ..
II. See PARTNERs, PARTNEnship, VIII. IX.
III. A decree, though not assignable at law, is transferrable for valuable con-
sideration in equity, and a court of chancery will support the transfer.
Coates’s Executrix v. Muse's Administrators et al. 551.
BANKRUPT LAWS OF A FOREIGN COUNTRY. See Assign ERs of
A BANKRUPT. * -
BILL AND ANSWER.
If the party, in whose favour a general balance has been awarded, relies
upon the award in his bill, and the other party in his answer, neither
contests it, nor alleges any claim on the part of the estate which he
represents, which had not been submitted to, and decided by the re-
INDEX. 563
BILL AND ANSWER—Continued.
ferees, the award must be considered as a complete adjustment of the
affairs of the two estates up to the time when it was given. Strodes v.
Patton et al. 228.
BILLS OF EXCHANGE.
A foreign bill of exchange protested, does not bind the heir of the drawer.
Alston Executor of Mutter, &c. v. Manford et al. 266.
BONDS. See OBLIGATIons, and EM BARgo LAws.
BOTTOMRY.
A vessel belonging to the port of Richmond, in Virginia, may be hypo-
thecated in the port of New York, by the master, for necessary repairs,
if the owner has no agent in New York. But the money for which
the bottomry bond is given, must be advanced on the faith of the bot-
tom, and must be necessary to enable the vessel to prosecute her voy-
age. Selden v. Hendrickson & Pryor. 396.
‘CHARTER-PARTY.
A charter-party was entered into during the war between England and the
United States, and during the blockade of the Chesapeake by the Bri-
tish fleet, by which the plaintiff let his ship to the defendants, to carry
flour from Norfolk to Cadiz ; and covenanted to deliver the flour, “ex-
cepting always restraints of princes and rulers;” and the freighters
covenanted to pay the freight. The ship was provided with a Sidmouth
license, but the charter-party did not express it; yet the fact was well
known to the defendants, who, as well as the plaintiff, relied on the
protection afforded by that license. The date of the charter-party, was
the 31st of January, 1813. After the ship. was loaded, it was ascer-
tained that the license would afford no protection against the blockading
squadron. The defendants, on the 3d of March, by letter, directed that
the ship should not proceed to sea under existing circumstances; on the
19th of June, they directed, that she should continue ready to prose-
cute the voyage as soon as the blockade should be raised; and, finally,
in the January following, the blockade still continuing, they directed,
that the flour should be delivered to their order, which was done. Held:
1. That the procurement of the license, vitiates the contract as much
as if it had been inserted in the charter-party. 2. That, although freight
cannot be recovered, yet the various directions given by the defendants
amounted to a new contract, which may be enforced ; and the ship
owner was entitled to an equitable compensation for his labour, and the
expenses incurred by him prior to the 3d of March; from that time, to
the 19th of June; and after the last day, to January 1814, when the
flour was delivered by the plaintiff to the order of the defendants.
Wilson v. Le Roy, Bayard & M*Iver. 447.
#CITIZENSHIP. -
Question of jurisdiction. What constitutes citizenship in another state,
%
564 INDEX.
CITIZENSHIP-Continuwed.
in the sense of the Constitution and judicial act, with reference to the
jurisdiction of the Federal Courts. Prentiss v. Barton’s Executors.
389.
CLERICAL MISPRISION. See WIRIT of ERRoR, coram vobis.
CO-DEFENDANTS,
It is not proper to direct an account to be taken between two co-defend-
ants, to determine what proportion of a sum ascertained to be due to
the plaintiff, by a former joint decree, is due from those co-defendants
respectively, unless the plaintiff in his bill, calls for such an account.
Although he has a right to call for such an account, he is not bound to
do so. Coates's Executrix v. Muse's Administrators et al. 529.
COMMISSIONERS IN CHANCERY.
I. A commissioner in proceeding to take an account, eac-parte, on the de-
fendants’ failing to appear, adopts a course of very questionable pro-
priety. At all events, the defendants’ would, on motion, be allowed
to repair their fault, especially if their non-attendance would be excused.
Coates's Executrix v. Muse's Administrators et al. 529.
II. See Evid BN ce X. AND RuLEs of Court.
CONCEALMENT OF PAPERS. See PRIzE or WAR, I.
CONSIGNOR AND CONSIGNEE.
P. H., residing in Richmond, Virginia, of the firm of M., H. & Co., Lon-
don, merchants, wrote to R. D., on the 5th of September, 1793, a
merchant of Falmouth, Virginia, informing him of the arrival, in
James river, of the ship Molly, chartered by M., H. & Co., to load
with tobacco to be shipped to Europe, consigned to M., H. & Co., and
advising R. D. to embrace this favourable time and opportunity, as he
deemed it, of shipping tobacco to Europe. The vessel, he said, would
“go to Cork for orders, and from thence to any port in Europe, out of
the straits.” In another part of his letter, he informed R. D., that “if
peace is not established in France, by the time the Molly arrives at
Cork, it is most probable she will be sent to Rotterdam, or some port
in Holland.” On the 19th of the same month, R. D. wrote in reply,
after informing P. H. that he had sent 58 hogsheads to be shipped by
the Molly,–4 I hope the tobacco will go to a saving market, as the
quality is well suited to the Dutch market, where I expect it will ulti-
mately go, as appearances, I conceive, strongly indicate a continuance
of the war.” The Molly arrived at Cork, about the end of the year 1793,
when M., H., & Co. determined to send the tobacco to France, the war
still continuing, and accordingly consigned it to a mercantile house in
Havre. After experiencing great delay and difficulty in obtaining the
account of sales from the consignees in Havre, and using every effort
to get from them the proceeds of sale, M., H. & Co. finally, in 1803,
sº
INDEX. 565
*CONSIGNOR AND CONSIGNEE–Continued.
consented to a compromise, whereby R. D. was only entitled to £142,
48, after deducting costs, commissions, &c., for his proportion of the
proceeds of the cargo of the Molly : It seems, That although it was
clearly the understanding of R. D., that his tobacco would not be sent
to France, should the war continue; yet his letter did not amount to a
positive instruction, which would deprive the consignees, after the
arrival of the tobacco in Cork, of the discretion of sending it to France,
if they should deem it advisable for the interests of the consignor to do
so. At all events, if the consignor objected to this destination being
given to his tobacco, it was his duty to have informed the consignees of
it, and his silence, after he was apprised of its destination, was an
implied sanction and approval of the act of the consignees, of which he
had no right to complain, after the speculation proved to be disastrous.
It seems, however, that only half commissions are chargeable by the
consignees in such cases. Dunbar v. Miller, Hart & Co. 85.
CONSTITUTION OF THE UNITED STATES.
I. The power of controlling navigation, is incidental to the power to regu-
late commerce, which the constitution confers upon congress; and,
consequently, the power of congress over the vessel, is co-extensive
with that over the cargo. The Brig Wilson. 423.
II. See JUDICIAL Power of THE UNITED STATES.
COPARTNERY.
I. Construction of articles of copartnery. Robertson v. Miller et al. 466.
II. Where a partnership expires by limitation, but the business is still car-
ried on, without any change in the circumstances, or in the expressions
of the articles, it must still be considered as conducted on its original
principles, and as a continuing partnership. Ibid.
III. See PARTNERs. PARTNERSHIP.
COSTS. e
Where decree creditors file their bill in equity against judgment creditors
and their mutual debtor, for the purpose of ascertaining the order in
which their several liens are chargeable upon the real estate of the
debtor, and for a distribution among them of the fund arising from the
sale thereof, according to their respective priorities, the fund is properly
chargeable in the first instance, with all the costs incurred by the
parties creditors, whether plaintiffs or defendants. Scriba, &c. v.
Deanes et al. 166.
{}OURT MARTIAL.
I. It seems, That a court martial, organized under the authority of a state,
has no power to assess fines upon delinquent militia-men, for failing to
obey a requisition to enter the service, emanating from the secretary of
war. Meade v. Deputy Marshal. 324.
566 INDEX.
COURT MARTIAL–Continued.
II. A court of inquiry is the proper tribunal for assessing fines against delin-
quent militia, or for the trial of privates not in actual service, under the
laws of Virginia. Ibid.
III. The sentence of a court martial, rendered against an individual, without
notice, is void. Ibid.
COVENANT,
A covenant to suspend proceedings upon a judgment until another secu-
rity given by the defendant is exhausted and proves inadequate, not
being perpetual, does not release the judgment. The judgment cons
tinues in full force with all its legal incidents attached to it. Scriba, &c.
v. Deanes et al. 166.
COVENANT, ACTION OF.
I. Quare, Where a man covenants to convey lands, and breaks his cove-
nant to convey, in order to avail himself of their increased value, and an
action of covenant is brought to recover damages for the breach, if the
value of the lands at the time of trial should not be the standard of
damages 3 Letcher & Arnold v Woodson, 212.
II. But it seems, that where a man contracts for the sale of lands, without
fraud, and it afterwards appears that he had, in truth, no title to the lands
when the contract was entered into, and, in consequence of his want of
title, he refuses to convey, the standard of damages, in an action founded
upon the covenant, is the value of the lands at the time of the contract
entered into, and not their value at the time of trial. [But see the note
of the Chief Justice at the end of this case.] Ibid.
III. Whether the jury in such a case, should allow interest upon the value
of the lands at the date of the contract, must depend upon the circum”
stances of the case, of which they are the proper judges, and it is com-
petent for the defendant to give in evidence to the jury, any circumstan-
ces tending to show that interest should not be allowed. Ibid.
#DAMAGES, MEASURE OF.
I. The general policy of the law forbids that a debtor should be subjected to
all the loss consequent on his failure to fulfil a promise to pay the debt,
Such breaches are so often the result of events which could neither have
been prevented or foreseen by the debtor, that interest is generally con-
sidered as compensation, which must content the creditor. Short v.
Skipwith. 103,
II. See PRINCIPAL AND AGENT, I. III. and Coven ANT, Action of.
pHBT, ACTION OF.
I. In England, where a penalty is given by statute, and no remedy for its
recovery is expressly given, debt lies, and, it seems, that this principle
is equally applicable here. Jacob v. The United States. 520.
II. An action of debt to recover a penalty, is a “civil cause,” within the
INDEX. 567
DEBT, ACTION OF–Continued.
meaning of the 9th section of the judicial act, from which a writ of
error lies from the district court, to the circuit court of the United
States. Ibid.
III. See PLEADING.
DECLARATION. See PLEADING, W. VIII.
DECREE.
I. A decree is binding and conclusive, with respect to the subject matter on
which it acts, but does not affect the rights of third persons, who were
not parties to the cause in which the decree was rendered. M'Call,
Smilie & Co. v. Harrison et al. 126. *
II. A decree, equally with a judgment creates a lien onºlands. Scriba, &c.
v. Deanes et al. 166. --
III. See INJUNCTION.
IV. Construction of a joint decree against two executors. Coates’s Execu-
trix v. Muse's Administrators et al. 529, 539.
W. Quare : Is a joint decree against two persons, one of whom dies before
the decree is carried into effect within the influence of the Virginia act
of assembly, “concerning partitions, joint rights, and obligations,”
(1 Rev. Co., ch. 98. § 3.) so that it may be revived against the repre-
sentatives of the deceased defendant; or are those representatives dis-
charged, notwithstanding the act of assembly 3 Ibid.
, WI. See Assign MENTs. III.
DEED.
Where deeds of trust or mortgage of personal property must be re;
corded ? Bond v. Mewburn et al. 316.
DEED. FRAUD.
A father, in 1783, made a voluntary deed of gift of certain slaves to his
only son, and possession followed and accompanied the deed. In 1785,
the father died, having appointed his wife and another, executrix and
executor of his last will. Subsequently, the son and donee qualified
as administrator de bonis non upon his father's estate, and in that capa-
city, a judgment at law when assets was rendered against him for a
considerable sum of money, the jury having found for the administra-
tor on the plea of fully administered. Many years after the date of
this judgment, the plaintiffs filed a bill in chancery against the adminis-
trator and others, assailing the deed of 1783, as fraudulent as to credi-
* tors, and claiming to have their debt discharged out of the property
conveyed by that deed.
Held: 1. That the slaves conveyed by such voluntary deed, are not assets
in the hands of the representative of the donor's estate, although such
representative was the donee himself.
2. That though such voluntary deed is void as to creditors, whether the
transaction involve moral turpitude or not, it vests in the donee a title
568 - INDEx.
DEED. FRAUD–Continued.
that is good against all the world save creditors, and defeasable by thern
only. Though creditors have a claim upon the slaves, conveyed by
such deed, for the payment of their debts, they have no title to the
slaves themselves. The donee does not seem to be a mere trustee for
creditors, and is not liable for the hires and profits of the slaves and
their issue, or for interest on the sales of such as have been sold, from
the time that he received them, or that the slaves were sold, but is re-
sponsible only for the slaves themselves, and their issue, that were in
being when the demand was made by the creditors, and their profits
from that date, and for the money actually received for those which
have been sold, and interest thereon, from the time that the demand
was made ; viz. from the institution of the suit. Backhouse’s Admin-
Mistrator v. Jett's Administrator et al. 500. !
DEMURRER. See EMBARGo LAws.
DEMURRER TO EVIDENCE.
I. A demurrer to evidence, supposes that evidence to be already admitted,
and no objection can then be taken to it, on the ground that it is inad-
missible. Where incompetent testimony is admitted, the proper remedy
is, by a bill of exceptions. If the party declines taking this course, and
demurs to the evidence, he waives all objection to its admissibility, and
places his cause on its sufficiency to establish the fact in controversy.
Jacob v. the United States, 520.
II. A party, who demurs to evidence, is bound to admit every conclusion that
may fairly be deduced from it. Ibid. ~
DEPOSITION.
I. A deposition taken de bene esse, was offered in the district court on behalf
of the United States, to which it was objected, “ that it was not taken
and returned according to law.” Held : In the appellate court, that this
objection must be considered as applying to it as a deposition in chief,
and does not dispense with the necessity of proving those circumstances
which would have entitled the attorney for the United States to read it,
as a deposition taken de bene esse. The Thomas & Henry, 367.
1I. Where the party, against whom a deposition is taken, expressly waives all
objection to it, this general waiver must be understood as extending to
the deposition, only in the character in which it was taken, and not
as imparting any new character to it, not intended by the party taking
it. Thus, where a deposition was taken de bene esse, and the adverse
party waived all objection, such a waiver does not make it a deposition
in chief. Ibid.
III. A deposition, taken before the trial, of an informer, who is entitled, under
the act of congress, to a portion of a fine, forfeiture, or penalty, is not
admissible evidence. The act of congress only makes such an informer
INDEX. 569
DEPOSITION.— Continued.
a competent witness, when “he shall be necessary as a witness on the
trial ;” of which necessity, the court must judge after hearing the other
testimony. Ibid. &
IV. A party, who offers as evidence in an appellate federal court, a deposition,
taken de bene esse, must show, that the requisites of the judicial act have
been complied with, viz.: that the deponent is dead, out of the United
States, or gone to a greater distance than 100 miles, &c., and, unless he
does this, the deposition cannot be read. Ibid.
DIGNITY OF DEBTS.
I. See INsolvex cy.
II. Construction of the 60th section of the act of assembly concerning execu-
tors. See Coates's Executrix v. Muse's Administrators et al. 539.
DISCOUNT. See OFF-SET.
DURESS. See EMBARGo LAws, VII.
DUTIES ON IMPORTS, &c., ACT CONCERNING.
I. In prosecutions for a violation of the act regulating the collection of du-
ties on imports and tonnage, the United States are not required to prove
guilt, but the accused must prove innocence. If, in any case, such a
legislative provision can be justified, it is in prosecutions under this act,
because the violation is generally perpetrated under all the secrecy that
ingenuity can devise; and the means of proving innocence, at least to a
reasonable extent, which is all that can be required, are in possession of
the accused. The Thomas & Henry, 367.
II. The act of congress, requiring masters of vessels, &c., to make a report of
their cargo, &c., does not forfeit the cargo for the omission of any spe-
cific article, constituting a part of the cargo, but only the article
so omitted. Consequently, it is error in the court below, to render
sentence of condemnation, forfeiting a portion of a cargo, unless the
libel charges, that that particular portion was omitted in the report. Ibid.
III. The section of the act, exempting “ships or vessels of war,” from the ne-
cessity of making a report and entry, on arriving at any of the ports of
the U. S. from any foreign port or place, extends as well to privateers as
to national ships. The Brig Wilson, 423.
IV. The power of controlling navigation, is incidental to the power to regulate
commerce, which the constitution confers upon congress; and, conse-
quently, the power of congress over the vessel, is co-extensive with that
over the cargo. Ibid.
ELEGIT, TENANT BY.
I. It is the well settled modern practice, that the officer who executes a writ
of elegit, does not put the creditor in actual possession of the land, but
gives him only a legal possession, which he must enforce by ejectment.
If the actual possession be withheld by the owner of the land, without
VoI. I.-4 C
570 INDEX,
ELEGIT, TENANT BY-Continued.
the fault of the tenant by elegit, he will have a right to hold over, after
he acquires actual possession, for the period during which his debtor
held the adverse possession; but if, from the act of the creditor himself,
or a third party, the rents and profits of the extended lands be not re-
ceived, the creditor cannot hold over, but his estate expires when his
debt might have been satisfied. Ronald’s Heirs v. Barkley et al. 356.
II. A judgment was obtained, in 1799, against two infant heirs, and in Au-
gust 1800, a writ of elegit was sued out on this judgment, and executed
on lands and personalty of the infants. The heirs retained possession
of the lands about five years, when ejectment was brought by the tenant
by elegit to reduce them into his possession. The guardian of the in-
fants, in the meantime, had been in perception of the profits, and had,
for the most part, failed to apply them in discharge of the debt for
which the lands were extended. In 1807, the extended lands were
sold under a decree, at the suit of other creditors, subject to the elegit.
In 1805, the ejectment was brought by the elegit creditor, and, pending'
that suit, viz., on the 28th of January, 1806, the guardian of the
infants conveyed a tract of land which he had purchased with the funds
of the infants, and for their use, in trust, to secure the debt due to the
elegit creditor, and in exoneration of the lien created by the elegit, and
the ejectment was dismissed. The guardian had purchased the land
conveyed by him in trust, at a sale made by a commissioner of the court
of chancery, but the legal title was not conveyed to him, and in the
trust deed, the rights under the elegit were reserved until a legal title
could be made. A suit being brought by the heirs to compel a convey-
ance to their guardian in trust, discharged of that encumbrance, it was
IHeld: 1. That although where ejectment is brought within reasonable
time from the service of the writ of elegit, it may amount to prima facie
evidence, that the possession, at the institution of the suit, was origi-
nally adversary, and the creditor may be entitled to hold over; yet, in
this case, the creditor having postponed the assertion of claim, for five
years, the acquiescence in her possession of his heirs, must be inferred,
and that the purchasers are not responsible for the profits which accrued
during the time that the lands were held by the heirs; with the acquies-
cence of the elegit creditor. They are liable only for the profits accru-
ing during the unexpired term. -
2. That the occupation of the extended lands, by the infants, must be
considered as an occupation under an implied contract, which the guar-
dian had a right to make for them, and that the perception of the profits
by him, is, in this suit, to be considered as a perception by them.
Ibid.
EMBARGO LAWS.
I. The assignment of breaches in an action upon an embargo bond, is a
part, and a very important part, of the declaration: and upon demurrer
to the declaration, the plaintiffs’ attorney will not be permitted to strike
INDEX. 57.1
EMBARGO LAWS– Continued.
II.
III.
IV.
V.
out the assignment of breaches, on the ground that the declaration is
good without it. Such a course would not be tolerated in any court.
Dixon et al. v. The United States. 177.
A variance between the declaration and bond, is an erroneous description
of the instrument referred to, so that it does not appear to be the
same when produced in evidence, either on oyer, or at the trial. Ibid.
A bond made payable to “The United States of America,” would, it
seems, be binding at common law, for “The United States of Ame-
rica” is a corporation, endowed with the capacity to sue, and be sued,
to convey and receive property. Ibid.
An embargo bond made payable to the United States, is good, though the
act directed that the master, &c., should give bond to the collector of
the district from which the vessel was bound to depart, the proper con-
struction of that act requiring, that the bond should be taken by the
collector, but made payable to the United States. Ibid.
A clause was inserted in an embargo bond, not authorized by the statute,
and a condition was omitted, which the statute directed to be inserted.
It seems, 1. That a statutory bond that contains more than the statute
requires, is not vitiated by the surplus matter, but the court will reject
the surplusage, as a mere nullity, and construe the bond as if such
surplus matter were not contained in it. 2. That a statutory bond is
vitiated by the omission of a material condition required by the statute,
viz.: “ dangers of the seas eaccepted.” Ibid., and The United States
. 195.
º),
VI. An embargo bond, made while the embargo laws were in force, which is
void as a statutory bond, is not valid as a common law bond: the em-
bargo laws not furnishing any criterion by which damages are to be
ascertained. Ibid.
VII. A statutory bond taken in a penalty greater than that prescribed by law,
is void, whether the statute prescribe a specific sum as a penalty, or a
standard by which that penalty is to be measured, so as to give a precise
sum. If, in the latter case, from the nature of things, the exact penalty
could not be ascertained with absolute mathematical precision, and the
variance should be so inconsiderable as to be entirely compatible with
an honest difference of opinion, it would be a question for a jury to
decide, whether, under such circumstances, the signature of the bond,
without objection, by the obligor, would not import his assent to the
estimate as the true value. But where the statute prescribed twice the
value as the penalty, and the defendant pleaded that the bond was
taken in more than thrice the value, and that it was obtained by
constraint, and the plaintiffs demurred to the plea, thus admitting the
allegations of the plea ; the demurrer was properly overruled. The
plea was good, and the bond a nullity. This position, entirely sus-
tainable as it is on general principles, must be especially true, in a case
572 • INDEX.
EMBARGO LAWS-Continued. t
in which the person taking the bond would, in the event of forfeiture,
be entitled, under the law, to half the penalty. United States v. Gor-
don & Shepherd. 190.
VIII. The second section of the original embargo act construed. See The
United States v. Jones et al., &c. 285. a -
IX. A libel against a vessel for violating the embargo laws, must contain a
substantial statement of the offence, and it must be made with reason-
able precision. But, inasmuch as the Embargo Act of December 1807,
prohibits all vessels, whether foreign or domestic, registered, or coasting
vessels from sailing to any port or place, and the supplemental act of
January 1808, annexes the penalty of forfeiture to any vessel which
violates either act, it is not necessary that the libel should set forth the
particular character of the vessel. United States v. Schooner Little
Charles. 347.
X. The exception in the act exempting foreign vessels from its penalties, in
certain cases, need not be noticed. The libel is good, though it does
not charge that the vessel libelled, was not embraced within the excep-
tion. Ibid.
XI. A vessel is charged with having violated the embargo acts, in departing
from a port of the U. S., and proceeding to Antigua. The proof is,
that she was at Camden, in N. C., in December 1807, and January
1808, and was in the port of Norfolk, in April 1808. Held: That the
report and manifest of her cargo, with the affidavit made by the
captain, before the collector at Norfolk, which are adduced as proof,
that she took in her cargo at Antigua, is admissible evidence. 1st.
These documents constitute one entire transaction; they need not the
entry of the ship to make it complete. 2d. In a prosecution against
the ship itself, a forfeiture is incurred by her violation of the act, whe-
ther with, or without the authority of the owner. Ibid.
XII. After a vessel has been seized and libelled, and a forfeiture claimed, the
court of admiralty does not lose its jurisdiction to condemn the vessel,
by losing possession of it. Ibid.
XIII. An order, made by a district judge of the United States, for the release
of a vessel libelled for a breach of the embargo laws, is as valid, if made
by the judge, at his chambers, as if it were made in open court. United
States v. Schooner Little Charles. 380. *~
XIV. Where the condition of a bond is, that the parties will perform the decree
of the court, the term “the court,” means, the court which shall ulti-
mately decide the cause. Ibid.
ENGLAND.
I. The decisions of the courts of England, made prior to the Revolution,
are of binding authority on the courts of Virginia. Those made since
have not that character, but when they are reasonable, conformable to
general principles, and do not change a rule previously established,
HNDEX. 573
ENGLAND–Continued. -
they will not be entirely disregarded. Murdock & Co. v. Hunter's
Rep. 135. -
II. And where a distinction is of ancient date, and the attempt to overrule it
has itself been overruled since the Revolution, such modern adjudication
can be considered in no other light, than as the true exposition of the
ancient rule. Livingston v. Jefferson. 203.
EQUITY.
I. See PARTIES, II. IV.
II. See WENDoR AND VENDEE, I. II.
III. See Usuay.
IV. See MISTAKE,
W. See DECREE.
VI. See AMENDMENT.
VII. See BILL AND ANswer,
VIII. See INJUNCTIon.
IX. See LIEN, I. (5)
X. See MARSHALLING AssETs.
XI. See TRUSTEEs.
XII. See MARRIAGE SETTLEMENT.
XIII. See EvilDENCE, X.
ESCHEATS.
The act of 1813, protecting purchasers of lands from aliens, who sold
them before they were escheated to the commonwealth by an officer
found, applies to an equitable as well as a legal estate in lands. Robert-
r son v. Miller et al. 466.
£VIDENCE. -
I. See PARTNERs, PARTNERSHIP, I. II,
II. An account taken from the books of a merchant’s clerk, who is dead, is
not admissible evidence in an action on account, unless such books
were the original books of entry, and kept by a clerk who could have
proved, if living, the delivery of the goods: and his hand-writing must
also be proved. Where such an account is offered, collateral testimony,
as, for example, a letter from the defendants, acknowledging in general
terms a balance due the plaintiffs, will not be admitted to verify an ac-
count which would be otherwise inadmissible. It must apply to the
account itself, and not merely to general transactions, which have no
tendency to verify the particular account produced, but would equally
support a claim for a small or large amount. Owen v. Adams. 72.
III. A decree is binding and conclusive, with respect to the subject matter on
which it acts, but does not affect the rights of third persons, who were
not parties to the cause in which the decree was rendered. M’Call, Smi-
lie & Co. v. Harrison et al. 126.
IV. The subscribing witness to a bond being dead, proof of the handwriting
574 INDEX.
EVIDENCE— Continued.
of the attesting witness, if unaided and unopposed by other evidence,
is sufficient to establish the execution of the bond. Murdock & Co. v.
Hunter’s Rep. 135.
W. Where, in a suit against an eacecutor, judgment is rendered, by the mis-
prision of the clerk, for a smaller sum than that found by the verdict
of the jury: and a subsequent suit is brought against the heir, for the
same debt, he cannot avail himself of the error in the judgment (even
if it is not amendable) but is liable for the whole amount due. As the
judgment could not be given in evidence against the heir, so neither
can it be given in evidence in his favour. Alston v. Munford. 266.
VI. See EMBARGo LAws, XI.
VII. See DEPos ITroN. - -
VIII. A claim to a vessel and cargo filed in an admiralty cause, though sworn
to, is not evidence. The law does not allow to the affidavit made to
them, the dignity of testimony. If it amounts to any thing, it is to no
more than “the exclusion of a conclusion.” The Thomas & Henry.
367.
IX. See NEUTRALs, W. -
X. Where a chancery suit is depending against an administrator, and the
cause has been referred by the court, to a commissioner, to ascertain
the amount due by the administrator to the estate of his intestate, it is
error in the commissioner to admit an administration account of the
said administrator, which has been settled before another commissioner
in the country, under the direction of a distinct tribunal, and while the
suit in this Court was pending, without the knowledge or participation
of the complainant. The commissioner should require vouchers for
each item in such account, and reject all items that are not established
by competent testimony. Backhouse's Administrators v. Jett's Admin-
istrator et al. 500.
XI. The rule that secondary evidence is inadmissible, when primary evidence
- is attainable, though, a sound general rule, is subject to some exceptions
where general convenience requires it. Proof, for example, that an
individual has acted notoriously as a public officer, is prima facie evi-
dence of his character, without producing his commission or appoint-
ment. Jacob v. The United States. 520.
EXECUTIONS. See FIERI FACIAs.
EXE CUTORS AND ADMINISTRATORS..
I. An executor or administrator may submit any account of his testator or
intestate, to arbitration, and if he adopts the award of the arbitrators,
the award is binding, not only upon the executor, or administrator, but
upon creditors of the estate which he represents. Strodes v. Patton
et al. 228.
II. Quaere, If such award be glaringly unjust, may not the executor, under
INDEX. 575
EXECUTORS AND ADMINISTRATORS– Continued.
certain circumstances, be made personally responsible 4 and may not
items unknown to the executor, and not acted on by the referees, be set
up either by the executor himself, or by the creditors, notwithstanding
the award of a general balance 3 Ibid.
III. The sale of a final settlement certificate by an administrator is valid, and
if such sale was necessary in a course of administration, and was for
the highest market price, the administrator will be protected, though it
sold greatly below its nominal value. It could only be made available
by a sale, as payment could not be coerced by suit, as in the case of a
bond. 'Ibid.
IV. See GUARDIAN AND WARD, I. II.
W. Where property is conveyed, without valuable consideration, by a debtor
to his son, and possession follows and accompanies the deed, though
the deed is fraudulent as to the creditors of the donor, such property is
not, after the donor’s death, assets in the hands of the donee, even
though the donee is the legal representative of the estate of the donor:
and the donee is not responsible for hires, and profits accruing before the
filing of the bill by the creditors, impeaching the deed as fraudulent.
Backhouse's Administrator v. Jett’s Administrator et al. 500.
EXECUTORY DEVISE. -
A testator lent to his son W. a tract of land for life, “ and if he has chil-
dren, at his death, he may dispose of it to them as he thinks proper,
reserving to his now wife the use of the land during her life, as long as
she remains his widow; but if she marry, then she is to have only one-
third part; the whole or part, whichever she has, is to be held without
committing waste. If my son W. dies without heirs of his body, then
the land, with the consideration above-mentioned, to go to my son Z,”
&c. This is an executory devise to W. in tail, after an estate for life
to himself, remainder in fee to his children living at the time of his
death, which executory devise in tail is to take effect on the contin-
gency of his dying without children living at the time of his death.
Murdock, Donald & Co. v. Shackelford’s Heirs. 131.
EXPATRIATION.
I. Quare : If a native born American citizen can eacpatriate himself? If
he can, he divests himself, by the very act of expatriation, as well of
the obligations, as of the rights of a citizen. He becomes, ipso facto,
an alien ; his lands are escheatable, and the rights appertaining to citi-
zenship, once lost, cannot be recovered by residence, but he must go
through the formula prescribed by law, for the naturalization of an alien
born. The Santissima Trinidad. 478.
II. But whether the right of expatriation exists or not, an American citizen
may, under the modern usage of nations, enter either the land or naval
service of a foreign government, without compromising the neutrality
576 INDEX.
EXPATRIATION.—Continued.
of his own, or divesting himself thereby of his rights of citizenship.
Ibid. -
FIERI FACIAS.
I. Where a f. fa. is levied, and the property is released by order of the
plaintiff, the force of the judgment, and, consequently, the lien created
by that judgment upon the debtor's land, are determined eo instanti.
Scriba, &c. v. Deanes et al. 166. * *
II. But if, after the fi. fa. is in the hands of the officer, but before it is ac-
tually levied, the debtor executes a mortage to secure the debt, and the
creditor covenants to suspend further proceedings upon his judgment,
until the property conveyed by the mortgage, should be disposed of, and
should prove inadequate; and the officer endorses on the execution—
“proceedings stopped, by order of the plaintiff:” the fi. ft. not being
levied, and the covenant to suspend, not being perpetual, the judgment
is not released, and the lien upon the lands of the debtor created by it,
is preserved in full force. Ibid.
III. Where a fê. fa. is levied, and another f. fa. upon a subsequent judgment
in favour of the same plaintiff, against the same defendant, comes to
the hands of the officer, while the property taken under the first execu-
tion is in his possession: this does not amount, ipso facto, to a levy.
There must be an actual, and not a mere constructive levy. Ibid.
FRAUD. See DEED, FRAUD.
GRAND JURY. §
No act of congress confers on the United States' courts, the right to sum-
mon grand juries, or describes their powers. The laws of congress have
invested the courts of the U.S. with criminal jurisdiction, and since this
jurisdiction can only be exercised through the instrumentality of grand
juries, the power to direct them results by necessary implication.
Hence, the powers of grand juries are co-extensive with, and are limited
by, the criminal jurisdiction of the courts of which they are an appen-
dage. Hence, too, a presentiment by a grand jury in the circuit court
of the U. S., of an offence of which that court has no jurisdiction, is
coram non judice, and is no legal foundation for any prosecution, which
can only be instituted on the presentment or indictment of a grand
jury, to be carried on in another court, unless that court has no right
to direct grand juries. But the district courts of the U. S. have that
power, as completely as the circuit courts, to the extent of their criminal
jurisdiction. United States v. Hill et al. 156.
GUARDIAN AND WARD.
I. If A be the executor of B, and testamentary guardian of C, the daughter
of B, and the testator give a bond as a specific legacy to his daughter,
and A receives the bond, and charges himself, in his executor's account,
INDEX. 57.7
GUARDIAN AND WARD– Continued.
with the amount thereof, “to be paid to his ward,” and writes to the
obligor, in the bond, that he shall make himself debtor to his ward for
the legacy, and hold the obligor as bound to himself. Held: 1st. That
this is an assent of the eacecutor to the legacy, and a payment of it to the
guardian as much as if the two characters were not united in,one person.
2d. That the sureties of A, in the executor’s bond, (as well as the exe-
cutor,) are discharged from liability for the legacy under the executor’s
bond. 3d. That A was chargeable, as guardian, but as he gave no bond
in that character, his heirs, on his death, are not bound, though the debt
remains one of the first dignity against his personal estate. Alston v.
Munford. 266.
II. If there be four testamentary guardians, one of the four has a right to re-
ceive a legacy for the ward, from the executor, and to give a receipt to
him for the same, and the acquittance to him is good, without requiring
the joint receipt of all. And on the same principle, if the characters of
executor, and of receiving guardian, be united in the same person, the
guardian who charges himself, discharges himself as executor. Ibid.
III. It is within the scope of the general powers of a guardian to make a lease
of the lands of his ward, and remove incumbrances therefrom ; and if a
guardian convey certain lands of his ward in trust to secure a debt, for
which other lands of the ward are bound by an elegit and thus dis-
charge the latter from the incumbrance, a court of equity will sanction
the contract; especially if it appears to have been beneficial to the ward.
Ronald's Heirs v. Barkley et al. 356. --.” .
HIRES AND PROFITS. |
When donee shall not be held liable for hires and profits accruing before
the filing of the bill, though the deed under which he holds is void as to
creditors. See Backhouse’s administrator v. Jett's administrator et
al. 500.
INDICTMENT.
I. An individual is presented by the grand jury, for a particular offence, and
a bill of indictment for the same offence is sent to the grand jury, by the
attorney for the U. S., which they find “a true bill.” At a subsequent
term of the court, the attorney enters a molle prosequ?. It seems : That
the indictment was but an amendment of the presentment, that the pre-
sentment was embodied with the indictment, and perished with it. United
States v. Hill et al. 156. -
II. See GRAND JURY.
INFORMERS. See DEPosTTIow, III.
INJUNCTION.
I. A sale of land was made under a decree of a court of chancery, by com-
missioners appointed for that purpose. The tract was composed of
Vol. I.-4 D
578 * INDEX.
INJUNCTION.— Continued. A.
three contiguous tracts, purchased by the defendant’s intestate of three
different individuals. The commissioners exhibited the title-papers at
the sale, expressing a certain quantity, and sold the land, as directed
by the acre, undertaking, however, neither for quantity nor title, and
declaring that the purchaser must buy at his own risk. A judgment
was obtained against the purchasers on their bond, and they came into
equity to enjoin this judgment, on the ground, that the defendant's in- ^,
testate was not entitled to, nor ever in possession of a single acre, under
one of the three deeds; that a certain portion of another tract had been
surrendered by the representatives, previous to the sale, in an adjust-
ment of boundary ; and that the third tract was also deficient. Held:
That the judgment for the purchase-money ought to be enjoined, to the
extent of the deficiency in the land. Strodes v. Patton et al. 228.
II. Quare : If the land sold so far below its value, as to justify the court in the
opinion, that the purchaser took into his estimate the deficiency in the
quantity, should not the bill be dismissed, unless the purchasers would
consent to vacate the contract " Ibid.
INSOLVENCY.
Where a partnership firm, being indebted to the United States for duties,
makes an assignment of all their effects for the payment of their debts,
for which the social fund is inadequate, this is an act of insolvency,
quoad the social fund, under the act of congress, which gives the United
States the preference to other creditors, “ in all cases of insolvency:”
and it seems, that such an assignment amounts to an act of general in-
solvency, and that the private property of the individual partners, will
also be subjected to the payment, in the first instance, of the debt due to
the United States, in the event of the inadequacy of the partnership
fund. United States v. Shelton & Co. 517. - r
INTEREST. See Coves ANT, Action of, III.
ISSUE OUT OF CHANCERY.
If a suit in chancery is brought against an heir, to subject him to the pay-
ment of an old bond, and the defence of the heir is the length of time,
the court will, if the heir require it, direct an issue, to ascertain whether
it has been paid or not. Alston v. Munford. 266.
JEOFAILs, STATUTE OF. See Prºmise, VIII.
JUDGMENT.
I. See LIEN. -
II. See Sc1rK FACIAs.
III. See WRIT of ERRoR, coram vobis.
IV. See EvilDBNCE, W.
JUDICIAL ACT.
- The 22d section of the original judicial act, limiting the period within
INDEX. 579
JUDICIAL POWER OF THE UNITED STATES.
which writs of error may be brought to five years after the rendition of
the judgment, or decree complained of, applies only to writs of error in
law, and does not extend to writs of error coram nobis. Strode v.
Stafford Justices. 162. -
It is competent for the courts of the United States, to restore property
captured jure belli, in violation of the neutrality of the United States,
if the capturing belligerent, brings the property within their jurisdic-
tion: and it is immaterial, whether the capture was made by a priva-
teer, or a national ship of the offending belligerent. The Santissima
Trinidad, &c. 478.
JURISDICTION OF UNITED STATES COURTS. •
I. The jurisdiction of the courts of the United States, depends exclusively
on the Constitution and laws of the United States. Livingston v.
Jefferson. 203.
II. After a vessel has been seized and libelled, and a forfeiture claimed, the
court of admiralty does not lose its jurisdiction to condemn the vessel,
by losing possession of it. United States v. Schooner Little Charles.
347.
III. See CITIZENsh IP.
LACHES.
When equity excuses laches; see Tabb’s Administrators v. Gist et al. 33.
LAWS OF NATIONS. See Non-INTER couns B, LAws, IV. V. NEUTRALs,
ExPATRIATION, II. -
LEGACY.
What amounts to an assent to a legacy. See GUARDIAN AND WARD, I.
I,EX FORI. See Assign EEs of A BANKRUPT.
I, IEN.
A creditor obtained a judgment against his debtor, on the 15th of Novem.
ber, 1800, with a stay of execution, till the 1st of June, 1801. Another
creditor obtained three judgments, on the 1st of December, 1800, and
other creditors obtained a decree, on the 20th of March, 1801, against
the same debtor. The second creditor, issued f. fa.’s on two of his
judgments, on the 13th of March, 1801, which were levied, and aft. fa.
was issued on the third and largest judgment on the 1st of April, 1801. .
The debtor executed a mortgage of his land, to secure the second cre-
ditor, on the 27th of April, 1801, which was recorded on the 25th of
May following ; and the officer returned the fi, fa.’s on the 39th of
April 1801, with different endorsements, that is, that he had levied
two of them, and the property was released by order of the plaintiff,
and on the third, that “proceedings were stopped by order of the plain-
tiff.” The second creditor covenanted with the mortgagor, that he
would not proceed further on the judgments, till the property conveyed
580
INDEX.
LIEN–Comtinued.
by the mortgage was regularly disposed of, and to return the property
taken, under the three executions in the officer's hands.
On suits in chancery brought by the decree creditors, against the judg-
ment creditors and their mutual debtor, for the purpose of ascertaining
the order in which the several liens of these respective creditors were
chargeable upon the real estate of the debtor, and for a distribution
amongst them accordingly, (the land having been sold by order of court,
and the proceeds brought into court by the commissioners), it was,
JHeld :
1. That the fund in the hands of the commissioner was properly charge-
able, in the first instance, with all the costs incurred by the parties
creditors, whether plaintiffs or defendants.
2. That a decree in chancery, equally with a judgment at law, creates a
lien on lands.
3. That a judgment, with a stay of eacecution, creates no lien on land,
until the plaintiff has a right to issue execution thereon.
4. That the return of the marshal on the two first executions, determined
the force of the judgments on which they were issued, and destroyed
the lien thereby created on the debtor's lands.
5. That equity will not connect the deed of mortgage with the judgments,
so as to preserve the original lien.
6. That the language of the return on the third execution, imports, that
it had not been levied, and the implied averment of service in the cove-
nant to suspend proceedings on the judgments, (the fact, whether it
was levied or not, being wholly immaterial in the view of the covenan-
tor,) does not conclude the party.
7. That the covenant to suspend, &c., not being perpetual, did not amount
to a release, nor discharge the lien created by the third judgment on the
land.
8. That the third fi. fa., having come to the hands of the officer, when he
had property of the debtor in his possession, under former execu-
tions, was not levied, ipso facto, by mere operation of law : there must
be an actual, and not a mere constructive levy.
9. That the lien on land, created by Judgment, depends upon the right of
the plaintiff to sue out an elegit, and it is not essential to the existence
of the lien, that the elegit shall have actually issued.
10. That the lien of the largest judgment, in favour of the second credi-
tor, not being lost by the covenant to suspend, and being preserved by
the failure to levy the fi, fa, sued out upon it, that judgment must
first be satisfied, the decrees of the plaintiffs next, the decree creditors,
and the other creditors, whether by judgment, decree, deed of trust, or
mortgage, to rank according to their dates respectively. Scriba, &c. v.
Deanes et al. 166.
LIMITATIONS, STATUTE OF. See WRIT or ERRoR, I.
INT) EX. 581
LOCAL ACTIONS. See Actions.
MARRIAGE SETTLEMENT, CONSTRUCTION OF.
I. A deed of marriage settlement, executed on the day of the marriage,
which conveys to a trustee a tract of land, and some slaves, principally
for the wife and children, has in it this uncommon clause: “that when-
ever, in the opinion of the said T. S., the trustee, the said landed estate
can be sold and conveyed, and the money arising from the sale thereof,
laid out in the purchase of other lands, advantageously for those con-
cerned or interested therein, then the said T. S. is hereby authorized
and empowered to sell and convey the same ; and the lands so by him
purchased, shall be in every respect subject to all the provisions, uses,
trusts, and contingencies, as those were by him sold and conveyed.”
Per curiam : The power thus granted is great, but not unlimited. The
trustee is to exercise, not his will, but his judgment. He can only sell
and make a re-investment, when, in his opinion, both of these acts can
be done advantageously to the parties interested. Wormeley et al. v.
Wormeley et al. 330.
II. Therefore, where the trustee sold the trust lands to one of his own credi-
tors (who held a mortgage on a tract of land owned by the trustee,
which was foreclosed,) and the creditor discounted the balance due on
the mortgage, in part payment of the trust estate; although this sale
was with the approbation of the husband and father of the cestwis gue
trust ; and placed the cestuis gue trust on another tract of land, which
was not, however, conveyed to the same uses with the trust land.—
Held: 1. That this is not a correct execution of the trust; and as to
the trustee himself, the whole transaction is vitiated; and if he had
taken a re-conveyance of the land to himself, he would have held it
subject to the trusts of the original deed: for a trustee cannot bargain
with himself.
Held: 2. That a purchaser of the trust property, with notice of the trust
and its violation, is himself a trustee, and holds the lands subject to the
claim of the cestwis gue trust. Ibid.
III. In this case, the trustee sold to W., his creditor. That creditor had notice
of the trust, for that appeared on the face of the deed, under which
his vendor held : he must be considered as having notice of the viola-.
tion of the trust; W., therefore, held the land subjected to the trust.
Ibid. -
IV. C. & M. were sub-purchasers from W. They had the same notice of the
trust that V. had; they, therefore, were purchasers with notice of the
violation of the trust, and held the lands subject to the trust. Ibid.
W. It is no excuse to them, that the trustee may have “given credit to the
cestui que trust for all that he received from W.,” for that was not all
that the trustee was bound to do; he was bound to lay out the proceeds
advantageously in other lands. Ibid.
582 INDEX.
MARRIAGE SETTLEMENT, CONSTRUCTION OF-Continued.
VI. It is not sufficient for the purchasers, C. & M., to deny all fraud in them-
selves, and all knowledge of fraud, in W. and the trustee, unless they
deny a knowledge of the facts, from which fraud is inferred by the law.
Jóźd.
MARSHALLING ASSETS.
I. The principle of marshalling assets, is this. A creditor having the
choice of two funds, ought to exercise his right of election in such a
manner as not to injure other creditors, who can resort to one only of
those funds; but if he, in the exercise of his legal rights, exhausts that
to which alone other creditors can resort, equity will place them in his
situation, so far as he has applied their funds to his claim. Alston v.
Munford. 266. r
II. In the application of this principle, simple contract creditors will be
substituted for specialty creditors, but not for judgment creditors: that
is, the simple contract creditors cannot charge the lands for so much of
the personal fund as has been applied to the payment of debts due by
judgments obtained against the ancestor. The reason is, that the writ
of elegit, by virtue of which the land is charged by judgment against
the ancestor, does not issue singly against the land, but against all the
chattels, (save oxen, and beasts of the plough,) and if the chattels be
sufficient, the land ought not to be extended. The judgment creditor,
therefore, has not the election between two funds, (as the specialty
creditor has,) and the principle on which assets are marshalled, does
not apply to the case. Ibid. -
III. Upon this principle of marshalling assets, where payments have been
made by an executor, to the vendor of land purchased by the ancestor,
and not conveyed to him, the lien of the vendor will be marshalled.
Ibid.
MASTER OF WESSEL. See BorroMRy.
MERCHANT'S BOOKS.
Account taken from, when admissible in evidence. See Evide NCE.
MISTAKE.
I. Where a deed of trust is executed by a debtor, to secure a debt due to A,
but by mistake the name of B is inserted, instead of that of A, and A
files his bill, praying relief, &c.; a court of equity, if the mistake is
clearly established, will decree the money to be paid in the first instance
to A, who is really and ultimately entitled to it. M“Call, Smilie & Co.
v. Harrison et al. 126.
II. In such a case, the surviving trustee, having reconveyed the property,
under a decree of a court of chancery, to the heirs of the grantor in the
deed, and having afterwards died, it is not necessary that the represen-
tatives of the trustees should be parties to the suit. Ibid.
INDEX. 583
MORTGAGE.
I. See LIEN, I.
II. Deed of trust or mortgage of personal property, where must be recorded.
Bond v. Mewburn et al. 316. f
NAVIGATION. See DUTIEs on IMPonts, &c.
NEGROES, MULATTOS, &c. CONSTRUCTION OF ACT PROHIBITING
IMPORTATION OF. *
The act of congress of the 28th of February, 1803, forbidding any master
or captain of a ship or vessel, to import or bring, into any port of the
United States, any negro, mulatto, or other person ofcolour, under certain
penalties, where the admission or importation of such persons is prohi-
bited by the laws of such state, does not apply to coloured seamen, em-
ployed in navigating such ship or vessel. The Brig Wilson, 423.
NEUTRALS.
I. See PRIZE of WAR.
II. Neutral rights are not violated by the grant of a commission to a neutral,
while within the territory of a belligerent. The Santissima Trinidad,
&c., 478. t
III. Quiere: If a colony in a state of rebellion, and struggling to establish its
independence of the parent state, is embraced by the act of congress of
1794, prohibiting the enlistment of soldiers, marines, and seamen, within
the limits of the United States, to enter the service of any foreign prince
or state 2 Ibid. -
IV. However this may be, such a revolted colony, or section of a state, comes
within the more ample provisions of the law of nations: and while neu-
trals concede to a people in such a situation, the character and rights of
a belligerent, if they are in a condition to make war, they are as much
bound to refrain from a violation of the rights of neutrals, as if they were
an acknowledged state. Ibid.
V. It seems, that the public, current declarations of a crew, that a large portion
of them were enlisted for the cruize, in the United States, in a case
where no motives existed for previous combination; and the testimony
of the master of the captured vessel, that a portion of the crew spoke
English, and that the mate told him, that the vessel was equipped and
fitted out in Baltimore, cannot be entirely disregarded. Ibid.
NON COMPOS MENTIS. #
Although a man may not be so absolutely insane, as to avoid his contracts:
yet, if he labours under melancholy, it will excuse inattention to his
affairs; and will authorise relief against judgments obtained against him
during such a state of mind. Tabb’s Administrators v. Gist et al. 33.
NON-INTERCOURSE LAWS.
I. The Adventure, a British ship, with a cargo of British goods and merchan-
dise, was captured by a French frigate on the high seas, pending a war
584
INDEX.
NON-INTERCOURSE LAWS.–Continued.
between France and Great Britain, and was given by the commander
of the French frigate, to the captain and crew of an American vessel
which had been previously, on the high seas, captured, plundered, and
burnt, by the same frigate, and who were detained-on board of the
French frigate, when the Adventure was captured. The American
sailors brought the ship and her cargo into the port of Norfolk, in the
state of Virginia, while the laws interdicting all commercial intercourse
between Great Britain and the United States were in force, which de-
clared it unlawful to import into the United States, goods, wares, and
merchandise, of British growth and manufacture, “from any foreign
port or place, whatever,” and prohibited their introduction under pain of
forfeiture and other severe penalties. Held: That this was no infraction
of the non-intercourse laws, the ocean, which is the great highway of -
nations, not being a foreign “port or place” within the meaning of those
laws. To constitute a violation of the law, the British goods, &c., must
have been brought from some port or place within the dominion of some
foreign potentate or power. The Adventure, 235.
II. Under the third section of the act of congress, passed on the 1st of March,
III. The allegation, admitting it be true, that the owner was advised to take
1809, “ to interdict the commercial intercourse between the United
States, and Great Britain, and France, and for other purposes,” com-
monly called the non-intercourse law; which was re-enacted “ against
Great Britain, her colonies, and dependencies,” on the 2d of March,
1811, the forfeiture of the vessel and cargo attached, in accordance both
with the letter and spirit of the law, the instant that a British vessel
came, voluntarily, within the limits of the United States. And the ar-
rival of the vessel within the Chesapeake Bay, is an “arrival within the
limits of the United States,” in the sense of the act. The Patriot, 407.
a pilot on board, because a storm might be expected, (the weather being
fair at the time,) is not sufficient to bring the vessel within the eaccep-
tion of the law, viz., vessels “forced in by distress, or by the dangers of
the sea.” Ibid.
IV. The non-intercourse law, was not repealed by the declaration of war with
Great Britain, except so far as its provisions were inconsistent with a
state of war, and were annulled by the paramount operation of the laws
of war. The laws of war condemn the vessel, but do not reach the
cargo. The municipal law condemned both vessel and cargo. The
non-intercourse law, therefore, was not entirely abrogated by the decla-
ration of war, but was left to operate in full force on the cargo. Ibid.
W. Where a subject of a foreign government, at peace with the United States,
is employed by American citizens, as agent and supercargo, to carry a
cargo to a foreign port, dispose of it there, and bring back to the United
States, a return cargo, consisting of articles interdicted by the municipal
law : and before the arrival of the agent, with the return cargo, within
INDEX. 585
NON-INTERCOURSE LAWS-Continued. ". - -
the United States, war is declared between the United States, and the
government of which the agent and supercargo is a subjeet: and after
such declaration of war, the agent and supercargo, brings the vessel,
(the property of the agent,) with her cargo, within the limits of the
United States: the cargo is not exempted by these circumstances, from
the operation of the municipal law, interdicting its introduction, under
pain of forfeiture. Although the agent, at the time of the arrival of the
vessel and cargo, within the United States, was an alien enemy, and al-
though war, if it does not dissolve, at least suspends, all contracts be-
tween enemies, and enables the belligerent to annul them ; although
the cargo was brought within the United States, by the enemy agent,
without the consent of the American proprietors: still, the enemy cha-
racter of the agent, acting under his original authority, cannot exempt
his employers from the penalty attached by law, to the offence so com-
mitted. Ibid.
OBLIGATIONS. *
I. The subscribing witness to a bond being dead, proof of the handwriting
of the attesting witness, if unaided and unopposed by other evidence,
is sufficient to establish the execution of the bond. Murdock & Co.
v. Hunter’s Representatives, 135.
II. See PLEADING, TW. W.
III, See PRESUMPTIon of PAYMENT.
OFF-SET.
I. J. S. executed his bond to T. M. R., who assigned it to J. At the time
of the assignment, there was a running account between J. S. and
T. M. R. The assignee instituted suit against the obligor, and some
time afterwards, but before judgment, upon a settlement of accounts,
between J. S. and T. M. R., there was found a balance due from T. M.
R. to J. S., which was acknowledged at the foot of the account, by
T. M. R., who promised to pay it three years after the date of the set-
tlement. Held: That this claim cannot be used as an off-set against
the bond, against the assignee, either at law, or in equity. Scott v.
Jones. 244.
II. A debt, payable in future, cannot be pleaded in bar of a present demand.
Ibid. -
III. The obligor in an assigned bond, who has equitable discounts against it,
ought to inform the assignee of his claims, when notice of the assign-
ment is given to him. Ibid.
PARTIES.
I. See AssignEEs of A BANKRUPT.
II. At law, a bond creditor has his election to proceed either against the heir
or executor, but if he comes into equity, and proceeds against the heir
or devisee, he must join the executor in the suit, and he must exhaust
VoI. I.-4 E
586 INDEX.
PARTIES- Continued.
the personal estate of the debtor in the hands of his legal personal re-
presentative, before the lands will be subjected. But if the personal
fund has passed into other hands than those of such legal personal re-
presentative, he is not bound to pursue it further, and the court will
proceed to decree directly against the land: Therefore, when a bond
debtor died, having appointed two executors, both of whom qualified,
and one of them died, having a portion of his testator's estate in his
hands, and his co-executor afterwards died, whose executor became the
executor of the first testator, and a bill in equity was filed by the bond
creditors, against the heirs and devisees, and the executor of the sur-
viving executor of the debtor; the court refused to compel the plaintiffs
to join the representatives of the executor who first died, in the suit,
(although that executor was responsible for a portion of the personal
estate of the bond debtor), and decreed a sale of the land derived from
him; it appearing, that the personal assets in the hands of the legal
personal representative were exhausted. Corbet et al. v. Johnson’s
Heirs. 77.
III. See MISTAKE.
IV. A bond creditor is not bound to pursue the personal assets of his debtor
in the hands of others than his personal representative, if such pursuit
threatens to be tedious, intricate, and unproductive, But if the per-
sonal estate is in the hands of legatees, who may be easily brought be-
fore the court, they ought to be made parties to the suit. Murdock &
Co. v. Hunter's Rep. 135.
PARTITIONS, JOINT RIGHTS, AND OBLIGATIONS. ACT CON-
CERNING. See DECREE, V.
PARTNERS. PARTNERSHIP.
I. The rest of the members of a copartnery, cannot engage the firm in ano-
ther partnership, so as to bind a member, who was not privy, or con-
senting to it. But his privity may be presumed from circumstances;
and, at any rate, his remaining silent and not dissenting, after he knows
of the new establishment, will be considered as acquiescence. Moreover
if it could be proved, that he had withdrawn from the old firm, before
the establishment of the new, he would, by such acquiescence, still be
responsible for the transactions of the new ; especially, if it was gene-
rally understood, by other people, that the old firm was united with the
new. Tabb’s Administrators v. Gist et al. 33.
II. If there be father and son in trade in this country, and a London merchant
writes to the father here, that the son, who was then in London, but
about to return to Virginia, will inform him of the terms on which the
Ilondon merchant will sell tobaccos for the father and son ; and the
son, afterwards makes a memorandum at the foot of the letter, that it
INDEX. 587
PARTNERS. PARTNERSHIP- Continued.
was at 10s. per hogshead, although that memorandum may not have
been written in the presence of the London merchant, circumstances
may show, that either that, or some other remuneration, less than the
ordinary commission in London, was agreed upon. Ibid.
III. See SETTLEMENT of Accounts, I. II.
IV. One partner has a right to convey the partnership effects, (other than real
estate) to the creditors of the firm, in payment of their debts, either to
the creditors directly, or through the intervention of trustees, and if
the transaction be bona fide, the deed will not be set aside, although the
consent of the other partner was not obtained. Anderson & Wilkins
v. Tompkins et al. 456.
W. Where all the partners of a mercantile firm are present, they have a right
to be consulted in giving a preference to particular creditors, but
this necessity is dispensed with, if one of the partners is absent in a
foreign country. Ibid.
VI. The doctrine that a partner cannot bind his copartner by a deed, does not
apply in a case in which the property purported to be conveyed by the
deed, is of such a description, that a title to it passes by the mere act
of delivery. The mere circumstance of annexing a seal to the instru-
ment of conveyance, in such a case, does not annul a transfer so con-
summated, Ibid.
VII. If real property is conveyed to a firm, or to partners in trust for a firm,
the members of the firm are tenants in common, and neither party can
convey more than his undivided interest in the subject. Ibid.
VIII. An assignment by deed of partnership debts, which are assignable at law,
executed by one of the partners only, though void at law, will be sus-
tained in equity, if it appear that the assignment was made with the
&ona ſide intention of securing the creditors of the firm. Ibid.
IX. The book debts of a merchant are not assignable at law, and a deed exe-
cuted by one member of a mercantile firm, purporting to convey such
debts, does not pass the legal title. At law, the assignment is only a
power to collect, and appropriate the debts, which is revocable. So far
as collections were made under it, before revocation, the title to the
money is in the trustees named in the deed. Such a power to collect,
is a contract that could not be enforced at law, but will be sustained in
equity, and have preference to any subsequent assignment by the other
partner, as the prior equity must prevail in a contest between more
equities. Ibid.
X. See Cop ARTNERY.
XI. Where a partnership firm, being indebted to the United States for duties,
makes an assignment of all their effects for the payment of their debts,
for which the social fund is inadequate, this is an act of insolvency,
quoad the social fund, under the act of Congress, which gives the
United States the preference to other creditors, “in all cases of insol-
588
INDEX.
|
PARTNERS. PARTNERSHIP--Continued.
vency * and it seems, that such an assignment amounts to an act of
general insolvency, and that the private property of the individual
partners, will also be subjected to the payment, in the first instance, of
the debt due to the United States, in the event of the inadequacy of the
partnership fund. United States v. Shelton & Co. 517.
PATENT LAws, construction of.
An old patent, securing to the inventor of improved machinery, for the
manufacture of flour and meal, the exclusive use of his invention for
14 years, having expired, J. & M. erected machinery, adopting the
improvements of the patentee, and, subsequently a special act of con-
gress was passed, authorizing the secretary of state to issue a second
patent for the same invention, for an additional term of 14 years, which
act contained the proviso, “that no person who shall have used the
said improvements, or have erected the same for use before the
issuing of the said [second] patent, shall be liable to damages there-
jor.” Held: That this proviso did not authorize the use of this
improved machinery, by J. &. M., subsequent to the date of the second
patent, and for such subsequent use, they were liable to damages to the
patentee. Evans v. Jordan & Morehead. 248.
HLEADING.
I. See AMENDMENTs.
II. See EMBARGo LAws.
III. See BILL AND ANswer.
IV.
In an action on a joint and several bond against several defendants, some
of whom are non-residents of the state in which the suit is brought,
and there is a return of “no inhabitants” as to them, the plaintiff may
proceed to take judgment against those on whom process has been
served. Pegram v. The United States. 261.
If, in such a case, the plaintiff declares against all the co-obligors, and
those on whom process has been served, proceed to trial on the merits,
the averment, that all the co-obligors are in custody, though irregular,
is not fatal, and will not preclude the plaintiff from obtaining a judg-
ment against such of the co-obligors as are really before the court. Ibid.
VI. As to the extent of the rule, that where there are several pleas, the legal
VII.
VIII.
inferences from the averments contained in one plea, have no influence
in deciding on the averments of another plea. Ibid.
See Evide NCE, VIII.
An action of debt, founded upon an act of congress, is brought to recover
a penalty, in which the declaration charges, that the defendant “did
forcibly rescue, or cause to be rescued, from the said collector, or one
of them, the said spirits,” &c., adopting the phraseology of the act.
Held: That, although the offence might have been stated with more
precision, and, although the declaration might have been held ill on
INDEX. 589
PLEADING— Comtinued.
special demurrer, yet it is a defect of form merely, which, after judg-
ment, is cured by the Statute of Jeofails. Jacob v. The United
States. 520. -
XI. See DEMURRER. To Evrprince.
X. See Co-DEFEND ANTS,
PRESENTMENT.
I. An individual is presented by the grand jury, for a particular offence, and
a bill of indictment for the same offence is sent to the grand jury, by
the attorney for the U. S., which they find “a true bill.” At a subse-
quent term of the court, the attorney enters a molle prosegui. It seems :
That the indictment was but an amendment of the presentment, that
the presentment was embodied with the indictment, and perished with
it. United States v. Hill et al. 156.
II. It has been the practice of the courts in this country, to take no notice of
presentments, on which the prosecuting attorney does not think proper
to institute proceedings, and upon this principle, a motion to quash a
presentment after a molle prosequi entered, will be overruled. Ibid.
III. See GRAND JURy,
PRESUMPTION OF PAYMENT.
If a suit in chancery is brought against an heir, to subject him to the
payment of an old bond, and the defence of the heir is the length of
time, the court will, if the heir require it, direct an issue, to ascertain
whether it has been paid or not. Alston, Executor of Mutter v. Mun-
ford et al. 266.
PRINCIPAL AND AGENT. * .
I. Where an agent voluntarily disobeys the instructions of his principal, and
converts to his own use a sum of money belonging to his principal, to
which a definite and a specific destination is given by the principal, and
the article into which the agent is directed to convert the money, sub-
sequently acquires great additional value, the agent is not merely re-
sponsible for the money, so misapplied, with legal interest, but is
accountable for the article into which it ought to have been converted.
Short v. Skipwith. 103. %
II. Although it is a rule, that the condition of him who seeks to avoid a loss,
is viewed with more favour than that of a person who seeks a gain ;
yet, between contending parties, the wrong-doer is the person who
ought to suffer, and he shall not be allowed the benefit of the rule.
Ibid.
III. A, the principal, residing in Europe, directs his agent B, in Virginia, by
letter bearing date December 20th, 1787, to convert the funds in his
hands belonging to the principal, into certificates, which B fails to do.
In the spring of 1789, B determines to relinquish his agency, and places
590 INDEX.
PRINCIPAL AND AGENT—Continued. -
A’s funds in the hands of C, except £51 16s. 10d., which are not ac-
counted for. C invests the funds of A in certificates, according to his
previous directions. Held: That B is chargeable with certificates which
he ought to have purchased, with the balance remaining in his hands,
at the same rate that other certificates were purchased by C, in 1789.
But B is accountable for the certificates with their legal interest, only,
and not with the certificates into which the interest might annually
have been converted. Ibid. - X-
IV. A contract of loan for six per centum interest, when the law allowed
only five, is clearly usurious; but where the person who betrays the
lender into such a contract is his agent, it would be against good con-
science that the borrower should derive any advantage to himself, pre-
judicial to the lender from this circumstance, and the lender is entitled
- to legal interest. Ibid.
W. An agent, who, in his character of agent, collects a debt due to his prin-
cipal, and retains it by contract of loan with his principal as debtor,
entered into before the debt is collected, is not entitled to commissions
on the amount so collected. Ibid. r
VI. See Consignon AND ConsignEE.
PRINCIPAL AND SURETY. See SURETTEs. How Exon ERATEp.
PRIORITY OF THE UNITED STATES. See Issorvency.
PRIZE OF WAR.
I. A vessel, sailing under a neutral flag, was captured by an American pri-
vate armed schooner, and brought into a port of the United States for
adjudication. The vessel and cargo were libelled, by the captors, as
enemy’s property, and a claim was interposed, by neutrals, who ap-
peared, by the ship's papers, to be the proprietors; but after the arrival
of the vessel in the United States, other papers were found, artfully
concealed, tending to show that the vessel and cargo were, in truth,
British property; Great Britain and the United States being then at
war. The concealed papers examined and compared with the ship’s
papers, and the vessel and cargo condemned as enemy’s property: but
order for further proof made, if an appeal should be taken, leaving the
question of its admissibility to be determined by the supreme court.
The Fortuna. 299. !
II. The question, of prize or no prize belongs exclusively to the courts of
the captor; and in no case does a neutral assume the right of deciding
it. The Santissima Trinidad, &c. 478. i
III. But offences may be committed by a belligerent against a neutral, in his
military operations, which it would be inconsistent with the neutral
character to permit; and which give to the other belligerent, the party
injured by those operations, claims upon the neutral which he is not at
INDEX. 591
PRIZE OF WAR– Continued.
liberty to disregard. In such a situation, the neutral has a double duty
to perform; he must vindicate his own rights, and afford redress to the
party injured by their violation. Ibid.
IV. If the wrong-doer comes completely within the power of the neutral, the
practice of this government is, to restore the thing wrongfully taken.
Ibid.
W. The principle has been well settled by the supreme court, that belligerent
captures by privateers, fitted out, armed, and manned within the
United States, in violation of the neutrality of our government, and
the act of congress, in such case provided, if they are brought within
the power of our courts, may be restored by them, to the injured belli-
gerent. Ibid. -
VI. And the same principle is applicable to the national ships of a foreign
sovereign, whether the capture was made within the waters of the
United States, or upon the high seas, and brought within the jurisdic-
tion of the federal courts. The general principle is undeniable, that
the national ship of a foreign sovereign, coming within the United
States, is exempted from the jurisdiction of the United States, but this
exemption is granted only on the condition that the sovereignty of our
government shall be respected; and the gross violation of its neutrality
by such foreign national ship, forfeits the condition, and subjects her
prizes, made in fact through neutral means, to restitution to the original
owner. Ibid.
VII. A commission to cruize, granted in a time of profound peace, but in con-
templation of war, may be used after war breaks out. It is sufficient to
give validity to captures made under it, that war existed at the time of
the capture. Ibid.
PURCHASER. See WENDOR AND VENDEE.
RECOGNIZANCE.
Where an individual is charged with the commission of a criminal offence,
and enters into a recognizance, conditioned to appear at a given day, and
undergo his trial, which recognizance is forfeited by the failure of the
party to appear and submit himself to the law; but the accused appears
at the succeeding term of the court, the court in which the recognizance
is filed has full power to suspend (or discharge 7) it, for good cause
shown by the accused, why he did not comply with the condition of the
recognizance: the object of such a recognizance being, not to enrich the
treasury, but to combine the administration of criminal justice with the
convenience of a person accused of a criminal offence, but not proved
to be guilty. United States v. Feely, &c. 255.
RELEASE.
A covenant to suspend proceedings upon a judgment until, &c., is not a
release of the judgment. Scriba, &c. v. Deanes et al. 166.
592 INDEX.
RENTS AND PROFITS.
When voluntary grantee shall not be held liable for rents and profits ac-
cruing before filing of the bill by the creditors, though the deed under
which he holds is fraudulent and void as to them, See Backhouse's
Administrators v. Jett’s Administrators et al. 500.
RULES OF COURT.
. There is no positive rule in this court, forbidding a report to be considered
at the Term to which it is made. The general practice has been, to per-
mit a report, in any degree complex, to lie for a second term, for consi-
deration and exception, on the motion of one of the parties. In plain
cases, the report is generally taken up at the first Term. Coates's Ex-
ecutrix v. Muse's Administrators et al. 529.
SCIRE FACIAS.
It seems, that the fifth section of the act of Virginia of 1792, which
limits the right of reviving judgments by scire facias, or action of debt,
to the period of ten years, applies as well to those judgments which
had been rendered at the time of the passing of the act, as to those
rendered afterwards; but if a creditor, who had obtained a judg-
ment against his debtor, in the life-time of the latter, has been em-
ployed in pursuing the personal estate in the hands of the executor, or
if a court of equity has enjoined him from exhausting the personal
estate, and so the delay has been produced, the act ought not to be so
construed as to bar a scire facias against the heir, after the lapse of ten
years. Alston v. Munford. 266.
SECRETARY OF THE TREASURY.
I. The power conferred on the secretary of the treasury, by the act of con-
gress of the 2d of January, 1813, to remit any fine incurred by any .
importer of goods, wares, and merchandise, from Great Britain, which
were shipped between the 23d of June, and the 23d of December, 1812,
if it appeared to the satisfaction of the secretary, upon petition by the
claimants, that the property was bona fide, owned by a citizen or citi-
zens of the United States, extended to the case of a joint interest, be-
tween citizens of the United States and Great Britain, and might right-
fully be exercised in favour of such joint owners, being citizens of the
United States. Gallego, Richard & Co. v. The United States. 439.
II. The construction of that law, was the peculiar province of the secretary,
of the treasury. The duty of the court was, simply to institute an
inquiry into the facts of the case, and to transmit a certified statement
of them, with the petition, to the secretary ; and the court, in which
the prosecution originated, had no authority to revise the acts of the
secretary, done in execution of it. Ibid.
SETTLEMENT OF ACCOUNTS.
I. Where extensive and complicated dealings have been carried on between
merchants, which have been closed by a settlement of their accounts,
INDEX. 593
SETTLEMENT OF ACCOUNTS-Continued.
and a note has been given by one of them for the amount appearing
due on such settlement, a court of chancery may open such settlement
for the purpose of correcting any errors which the parties may have
committed. [But see Brydie's Executor v. Miller, Hart & Co., reported
in this volume.] Dunbar v. Miller, Hart & Co. 85.
II. Where a final settlement of the accounts of a mercantile firm has taken
place, after its dissolution, shortly after which, one of the partners dies,
and a bill is filed by the executor against the surviving partners, to com-
pel a resettlement, the deceased partner being of sound mind, when the
settlement was made, and deliberately sanctioning it, a court of equity
will not disturb the former settlement, unless it be clearly shown, that
errors were committed, or that imposition was practised upon the de-
ceased partner, to induce him to sanction it. Brydie’s Executor v.
Miller, Hart & Co. 147.
SIDMOUTH LICENSE. See CHARTER PARTY.
SLAVE TRADE, CONSTRUCTION OF ACT PROHIBITING.
An act of congress declares, that “no person shall build, fit, equip, load, on
otherwise prepare, any ship or vessel, &c., within any port of the U.
S., nor shall cause any ship, or vessel, to sail from any port of the U.
S., for the purpose of carrying on any trade, or traffic in slaves, to any
foreign country, and it declares, that “if any ship or vessel, shall be so
jitted out, as aforesaid, or shall be caused to sail, as aforesaid, such ship
or vessel, &c., shall be forfeited to the U. S.” And the second section,
inflicts a penalty of $2000, on any person who shall build, fit out, &c.
&c., any such ship or vessel, knowing, or intending that the same shall
be so employod. Held: 1st. That the forfeiture of the vessel is not
incurred by the building of the vessel for the illegal purpose aforesaid,
but only for the fitting out, OR causing her to sail as aforesaid. 2d. An
information against the vessel, which charges, “that she was built
jitted, equipt, loaded, or otherwise prepared, &c., on caused to sail,”
&c., is bad for the uncertainty, as to which of the several offences is
charged; and on such information, a sentence of forfeiture ought not
to be pronounced. The Brig Caroline. 384.
STATUTES, CONSTRUCTION OF.
I. In the construction of statutes, one part must be construed by another.
In order to collect the legislative intention, the whole statute must be
} inspected. Strode v. Stafford Justices, 162.
II. It is a rule of law, that a statute, applicable in its terms to particular actions,
cannot be applied by construction, to other actions, standing on the same
reason. Jacob v. The United States, 520.
III. The exposition of the acts of the several state legislatures, is the peculiar
and appropriate duty of the state courts, and the federal courts will al-
ways feel great reluctance in breaking the way in the exposition of such
Vol. I.-3 F
594 INDEX.
STATUTES, CONSTRUCTION OF-Continued.
* statutes and will not do so, unless really necessary for the decision of the
cases before them. Coates's Executrix v. Muse's Administrators et al. 539.
STATUTORY BONDS. See EMBARGo LAws.
STAY OF EXECUTION. A judgment with stay of execution creates no lien
on lands until the creditor has a right to issue execution thereon.
Scriba, &c. v. Deanes et al. 166.
SURETIES. HOW EXONERATED. *
I. On the 13th of December, 1790, a bond with two sureties was executed,
the condition of which was, that the principal obligor should collect
debts due to the obligees, and account faithfully for his transactions, as
often as required, and at least on the 1st of September of every year.
On the 21st of October, 1799, the collector and principal obligor, rendered
an account, showing a considerable balance against him, and on the 15th
of February, 1800, the collector executed a deed of trust to secure this
balance, whereupon the time of payment was extended by the obligees.
This deed was made at the instance of the obligees, and the obligees
promised to surrender the bond, provided the deed was recorded in the
spring of 1800. The deed was delivered to the obligees, who did not
record it, till September 1800. In the stated account, the collector de-
bited the obligees with a legacy, bequeathed by one of the obligees, to
the son of the collector, the collector being the guardian of his son. The
collector’s stated account afterwards turned out to be false and fraudu-
lent, he having received more money than he accounted for, and suit
was brought to charge the sureties. The property conveyed by the deed
of trust was sold, and the proceeds fell short of the amount appearing
due by the stated account to secure which the deed was made. Held :
1. That the promise to surrender the bond, on condition of executing the
deed, and recording it in the spring, was still binding on the obligees,
though the deed, in point of fact, was not recorded until the fall, the
failure to record it in the spring, being the fault of the obligees, who had
possession of it. -
2. That the sureties were exonerated from all responsibility, for so much
money as appeared to have been collected, and to be due by the stated
account, at the date of the deed, the deed having been made with the
assent of the obligees, and indulgence having been extended to the col-
lector, in consideration of the deed.
3. But the sureties were still bound for so much of the money of the
obligees as had been collected, prior to the execution of the deed, and
not accounted for by the collector in his stated account, inasmuch as
the failure to render a true account, was a breach of the condition of
the bond. -
Quaere, If the sureties were not discharged from responsibility for the
legacy, as the credit was admitted by the obligees, knowingly. Hop-
kirk v. M'Conico et al. 220.
II. See GUARDIAN AND WARD, I. II.
INDEX. 595
TRANSITORY ACTIONs. See ACTIONs.
TREATY.
A treaty between the United States, and one belligerent, does not affect
a question of prize, as between the two belligerents, where the prize
(captured from the belligerent making the treaty,) is brought by the
other belligerent into our ports: nor is it important, that the capturing
vessel was commanded by an American citizen. The treaty can bind
only the parties thereto; and whatever operation it may have upon the
American citizen, individually, it cannot affect the general question of
the validity of prizes, made between belligerents. The Santissima
Trinidad, &c. 478.
TRUSTEES.
I. The vendor of an estate, who has received the purchase money, but re-
tains the legal title, is a mere trustee for his vendee, and can avail him-
self of no act prejudicial to the trust. Waddington v. Banks et al. 97.
II. See MARRIAGE SETTLEMENT.
TRESPASS ON LANDS.
- An action for a trespass on lands, is a local action, and the trespasser is
not liable to an action, unless he is found within the jurisdiction where
the lands lie. Livingston v. Jefferson. 203.
UNITED STATES, a
I. A bond made payable to “The United States of America,” would, it
seems, be binding at common law, for “The United States of Ame-
rica” is a corporation, endowed with the capacity to sue, and be sued,
to convey and receive property. Dixon et al. v. The United States.
I77. r
II. An embargo bond made payable to the United States, is good, though the
act directed that the master, &c., should give bond to the collector of
the district from which the vessel was bound to depart, the proper con-
struction of that act requiring, that the bond should be taken by the
collector, but made payable to the United States. Ibid.
III. See INsolvency.
USURY. t
A contract of loan for six per centum interest, when the law allowed only
five, is clearly usurious; but where the person who betrays the lender
into such a contract is his agent, it would be against good conscience
that the borrower should derive any advantage to himself, prejudicial to
the lender from this circumstance, and the lender is entitled to legal
interest. Short v. Skipwith. 103.
WENDOR AND VENIDEE.
I. The vendor of an estate, who has received the purchase money, but
retains the legal title, is a mere trustee for his vendee, and can avail
himself of no act prejudicial to the trust. Waddington v. Banks et
596 * INDEX.
WENDOR AND VENT)FE—Continued.
II. But, Quare : Where a mercantile firm sells real estate, and receives the
purchase money without making a conveyance of it to the purchaser,
and several intermediate sales are made, and the last purchaser brings
suit against the surviving partner to compel a conveyance of the legal
title, will an individual equity acquired by the surviving partner
against one of the intermediate purchasers, operate such an union in
him of the legal and equitable titles as to give him a perfect title to the
property to the eactent of that equity, and thus prevent the court from
decreeing that he shall convey the legal title to the last purchaser ;
The situation of the surviving partner, seeking to establish such an
equity, would at least be delicate; he would be required completely to
show the fairness of his transactions, and he would not be permitted, as
against the purchaser of the equitable title, to derive any advantage
from speculation, or from money actually advanced with notice of the
equity of the purchaser. Ibid.
III. See INJUNCTION, I., II.
IV. See MARRIAGE SETTLEMENT.
W. Purchasers from aliens. See EscHEAT.
WAR. See Nox-INTER course LAw, IV., V.
WILLS. CONSTRUCTION OF. See ExECUTORY DEVISE,
WRIT OF ERROR IN LAW. &
I. The 22d section of the original judicial act, limiting the period within
which writs of error may be brought to five years after the rendition of
the judgment, or decree complained of, applies only to writs of error in
law, and does not extend to writs of error coram vobis. Strode v.
Stafford Justices. 162.
II. An action of debt to recover a penalty, is a “civil cause,” within the
meaning of the 9th section of the judicial act, from which a writ of
error lies from the district court, to the circuit court of the United
States. Jacob v. The United States. 520.
WRIT OF ERROR COR.A.M WO BIS.
An action of debt is brought on a bond; the verdict, as rendered by the
jury, is for the penalty to be discharged by the sum expressed in the
condition, with interest till paid; but by the misprision of the clerk, the
verdict is entered for the smaller sum as damages, without interest, and
the judgment is entered for the penalty to be discharged by those
damages without interest. It seems, That for this misprision, the
judgment might have been reversed by writ of error coram vobis.
Alston v. Munford. 266.
THE END.
* N
. |
Gp
| land 82 g 8 8. r
- . j
- .* .
f i
f :
- ‘. . * . " . . . .” * *
es * . . . . . *, * * - , { -- *
* - ". . . . . . . . . . . s’ , ºf i
*s, w- t w * * # ** - - .
2. . . ~ . r 28. *
, - . " * * -
º º *
*** * • ?' - ºf g { *3 tº 4 *** - ". ." - ~, • “2- : *
* *, * --, - - ." * *
* { t
* * * * * ...” e “, *- * * * * * * , ** *
' ' , tº s *. g *
‘. . • & #
* . . . . . . . ~~.- .
... & y ; : . . **** --~\,- - | *.*. - * * w jº * * * *. - : , - . . ; - * -
“. . i 14 ---, * --- x f * - i : •e *.
! * & tº j
3. - * *
- - * * , * ... “*.*, *
“. . . . . *
-: 3 .. ( ; * |
f * .<re, -** &
* . . . . . . . . . . . - . . . . . . . . . . -
l - r" : . * , , 'W' ' 's' . . • • ** - --~~. - - •.
3 ’ i. * . . . . . . ~, , ‘. . . . . . . .'; “rº- ". .
& 4- . - .* * º s
* & v. - S. f - * x . ~ a .
* - º ; : " ,
*
g - . .. s & " ", , , , * . . . . . . . • ‘. . . . . . . . ,º \, Yºr
4. * ,r # J : “, v'. * -
g t *. . y
*** * *
} . - - -
- •, : ; $4 :
../ *.
* * - . . . . . ' -. { *
;” § * * * t - § { - - I - , , - . { ‘.
; ſ º , * * :
º: f f \ .
* - --" - , , --, .. . . . . ** - > *, * • {
: * -º-; *.* - • * * ,
p t 3.
l, “’ . . * . . . . . . . . . . • ? -
ſ (- º f - | & - * s *g -
* * $ *
“-3 '' . . . . . *
& r ºr - * . * * ... . 'º. - ". * *** * - ..."
x ; * -- - # . . . . . . . . * : # # - .º. ".
. . .. f ! : ; 4.
- *
- - . . .” • ... r **'.--. Y - . º -
• * * !. ‘. . s * , Y - ; :- " º: • ' ' ' . . . . . . . . . . § . rty." . *..., “º-ºst. s
- ; * --ºf- --º, * *. -
! • * !
f - •.
- * : ** g - * :
, , , ºf - e - . ... • * *
. . . ," • * v- .** *
f : * - sº * * > •.”
Aſ *** º **º - ‘.
t? $ ** ~~~, *\sº *, ~~~ f -
* -ºs, ... " *
. yº” #--w, :
# , , , ‘’ * { * * * * ... sº • * * * • * x s
* = - - * g” * , * , º ; . .* ſ
- . - !. y t’
.* * * * *… t
• w, . - *- :
's #
- 4
\, ~s %. t * * * . i * ** - Tº 4, #2:... º.º. . ’’. ‘Y - a "t." ~, a *M*-*-*. ... tº y
º ... ". . . " ; - “... “Y” , , , , , , , Sºx, von ...” . ~~~,
‘. . … - ; ."
º •,
898.6 poZg _ ' ' ' ' ' ' ' - ºr 9 ºv-º-º-º-º-o-, ºn tº
09 |06 9 * ~ * -- . . .---
, 5
*
- & āºšić º § § º š #. * §
º ºr º: ɺ º & sº º º ! ~ *
Holw HöXīššWNº" º . . . ~ ſº














...is
tº $.