author: Mr. Justice Barbour

text:
    James Atkins, Appellant, vs. N. and J. Dick and Company, Appellees.
    A bill for an injunction was filed, alleging that the jparties who had obtained a judgment at law for the amount of . a bill of exchange, of which the complainant- was endorser, had, before the suit was instituted, obtained payment of the. bill from a subsequent endorser, out of funds of the drawer of the bill, obtained, by the subsequent endorser, from one of the drawers. It. was held, that it was not necessary to make the subsequent endorser, who was alleged to have made the payment, a party, to the injunction bill.'
    In such a bill an allegation that the amount due on the bill of exchange was paid, is sufficient; without stating the value or nature of the-effects out of which the payment was ■ -.-made.
    If there be any one ground upon which a Co,urt of Equity affords relief, it is an allegation of frhud, proved or admitted.
    APPEAL from the Circuit Court of the United States for the Southern. District of Mississippi.
    On the 24th June, 1834, Cain and Lusk, merchants of Alabama, drew a bill 'of exchange for two thousand four hundred and five dollars, on Martin Pleasants and Company, of New Orleans, in favour oí the. appellant, James Atkins. This hill was endorsed by James Atkins, to Parham N; Booker,.and was afterwards endorsed to N. and J. Dick and Company,- the appellees. The bill was protested,and the appellees brought -a suit against- James Atkins, in the Circuit' Court of the United States for the District of Mississippi, to May term* 1838, and recovered a judgment for thirty-two hundred and twenty-five dollars.
    Execution was issued on the judgment, and a levy,was made on the property of James Atkins; who,/in redemption of the samé, gave a forthcoming bond, with sureties, for the delivery of the property to the marshal oh. the day of .sale. The property.not having' been delivered according tb the provisions of the bond, the marshal returned the bond as. forfeited; whereby, according to the laws of the state of Mississippi, it became, in force and effect, a-judgment against the obligor and his sureties.
    The appellant, in order to stay execution on the bond against himself, and the sureties, filed a bill on the equity side of the Court, and obtained an injunction against the obligors in the bond.
    The hill states, that since the giving of. the forthcoming.bond by, the appellant, and his sureties, he has ascertained, and does verily believe, that N. and J. Dick and Company had been paid the money mentioned in the hill of exchange, before the institution of the suit on the same; but that he had no knowledge of .this on the giving of the forthcoming bond and its forfeiture; that he is advised, and believes, that the bill of exchange was paid to N. and J. Dick and Company, by Parham N. Booker, before the action was brought against him on the bill ; and that the same was. paid because of effects placed in the hands of Booker, by Lusk, one of the drawers of the bill. That he is advised and believes that he would have had a good and meritorious defence against Booker, on account of .the effects placed in. the hands of Booker by Lusk, had Booker brohght an. action against him in his own name; and he charges that the names of N. and J. Dick arid Company have been used to defeat him in such a defence.
    The defendant, the appellees demurred to the bill, and alleged the following causes of demurrer:
    1. It is alleged in the bill as a substantive, and the original ground for injunction of the statutory judgment therein named, that one Parham N. Booker, is the actual, and not the nominal plaintiff in. said judgment; lhat as endorser of the bill of exchange, (the basis' of the judgment,) next, after the complainant as the first endorser, having paid the amount of the bill to the holders, received certain effects of the drawers, whose amount ought to be credited to complainant ; and’ yet the said Booker is not impleaded as a defendant;

      2. Nor is the amount, or value,'or nature of the effects, so charged to have been paid to the second endorser, specified in said bill; nor what part or portion was discharged^ or whether any of such effects proved productive.
    3. The said bill contains ho matter or grounds'whereon the Court can grant the relief prayed therein.
    ■ The Court ordered, adjudged, and decreed that the demurrey to the bill be sustained, and that the complainant have leave to amend his bill. It was further ordered, adjudged, and decreed, that the injunction be dissolved: and the complainant in the bill declined making any amendment to the bill, and put the cause down for a further hearing upon the bill and • demurrer: and, after argument heard, it appearing to the. satisfaction of the- Court, that Parham. N. Booker was materiaky interested in the issue of said cause, and that the said Booker had not been made a party to the same, it was, therefore, ordered, adjudged, and. decreed, that the said bill be dismissed for want of proper parties to the same, &c.
    The case was argued by Mr. Cocke, for the appellants; and by Mr. Crittenden, for the .appellees.
    For the appellants; it was contended,
    1. That this being an injunction bill, and Booker being no party to the proceedings at law, he was ■ not a necessary or proper party to the injunction bill.
    2. That the fraud charged should have been;denied by answer; and that the Court below in sustaining the demurrer and dimissing the bill, was guilty of manifest error.
    3. That Booker’s rights and remedies, whatever they.may be, are separate and independent, and purely legal.
    4. Ón sustaining the demurrer, the injunction ought, not to have been dissolved; but leave given to bring the other parties before the Court.'
    Mr. Cocke stated, that he was aware, that it is a rule in equity, that all persons materially interested in a suit ought to be made parties. But the Court will always look to the object of the suit in determining the question,of the necessary parties to it. Law Library, vol. 49, pages 6, 7.
    . It is no part of the object of this bill to affect the liability Of Atkins to Booker, on Atkins’ endorsement to him. Booker’s rights and remedies would remain unaffected by a decree of perpetual injunction of N. and J. Dick and Company.
    On the subject of the rule of proper parties to a bill, a Court of Equity will not'suffer it to be applied to defeat the purposes of justice; if the case can be disposed of without prejudice to the rights or interests of persons who are not made parties. A Court.of Equity will no,t require persons to be made parties, where the circumstances of the case do not warrant it. Story’s Equity Pleading, 78, and the authorities there stated. .
    This is not an original bill. In an injunction suit, no objection can be taken on the. ground that absent persons are not made parties! Law Library, vol. 4-9, page 53.
    Whatever rights Booker may have either at law or in equity, are predicated from the liabilities of Atkins to Booker, on Atkins’ endorsement to him. Each endorsement is in .the. nature of a new bill. It constitutes a paramount, separate, distinct, and independent contract. Intermediate endorsers, or endorsees, are not necessary parties in equity; their remedies are on the bills of exchange, or promissory notes, and at law. . Law Library, vol. 50, page 151. Ward vs. Vanbokklen, 2 Paige’s Rep.'289. M‘Carty vs. Graham, 2 Simmons’ Rep. 285. 2 Atkins’ Rep. 235.
    . The merits of the case between Atkins and N. and J. Dick and Company, can bé determined without affecting the interest of Booker; and it is the duty of the Court to decree between the parties before them. Russell vs. Clark’s executor, 7 Cranch, 69. Booker’s rights could not be .affected by the decree of perpetual injunction against N. and J. Dick and Company. Wendel vs. Van Rensselaer, 1 Johns. C. R. 437. • 7 Conn. Rep. 437. Jay vs. Wirtz, 1 Wash.C. C. Rep. 517. He was not named as a party defendant, nor was process prayed against him, or his interest to be affected. He was, therefore, no proper party. Verplankvs. The Mercantile Insurance Company, 2 Paige’s Rep, .438. The Executors of Brasher vs. Van Courtlandt, 2 Johns, C. R. 245. Lucas vs. The Bank of-Darien, 2 Stew. Alabama Rep. 280. Lyle vs. Bradford, 7 Monroe Rep. 113. There was nothing demanded of Booker, and therefore, he should not be made a party. Kerr vs. Watts, 6 Wheat. Rep. 550.
    Had Booker been made a party in equity, he could have claimed that he was not a party in the suit at law. That his rights were purely legal, distinct, separate, and "independent, confined alone'to Atkins’ endorsement to him, and have claimed to be restored 4o his remedy at law, and it would have been allowed to him. 2 Story’s Equity Pleading, p. 172, se,c. 885; p. 173, sec. 887. Marine Insurance Company vs. Hodgson, 7 Crunch, 336.
    If the suit at law of N. and J. Dick and Company against Atkins, was really .for the use of Booker,.his name should have been placed on the record as the cestui'que use; by concealing his connection with the suit, he has no right to shift the onus probandi as to thle matters in litigation, or to have the advantages which his situatipn, as a defendant in Chancery would give him. ( This would be a fraud on Atkins’ defence against Booker, at law. Courts of Equity would never állow the success of such a fraud. The demurrer is in bad- grace; and it may be worthy of inquiry, upon what principles do N. and J. Dick and Company demur? It would be against conscience to execute a judgment at law, thus situated’. Marine Insurance Company vs. fclodgson, 7 Cranch, 332.
    The fact is, Booker can only be used in the injunction case, as a «witness. Fentoti vs. Hughes, 7 Yesey, Jr. Rep.. 287. 1 S. C. Rep. 73,74.
    The bill insinuates that Booker is the instigator, and it may be that he may be an unwilling witness; but Atkins is entitled to the answer of N. and J. Dick and Company, and the testimony of Booker.
    If it be true, as charged, that the bill of exchange , has in fact been paid; it matters not by whom or how; the right of N. and J. Dick and Company to have an action again for the money, was gone both at law and in equity. They have no right to be paid twice. If they could have no action for themselves, it is difficult to perceive upon what principle they could have an action for another. By the payment of the bill of exchange, it was cancelled by law.
    ' It is time enough for Atkins to litigate his rights with Booker, both at law and in equity, when Booker shall sue Atkins on Atkins’ endorsement to Bookér.
    It is therefore claimed, that the decree of the Court below should be reversed; the demurrer be overruled; and leave granted to N. and , J. Dick and Company to answer the bill.
    Mr. Crittenden, for the appellees,
    contended, that the bill of the appellants was properly dismissed by the Circuit Court, for want of proper parties, and for want of equity.
    The Circuit Court allowed the complainant to add proper parties; but this he refused, and went on, notwithstanding thfe permission. According to the allegations of the bill, not only Parham N. Booker, but all the sureties in the'forthcoming bond, given to the marshal, should have been made parties to the suit, according to their interest in relation to the matters alleged in it; and in order to enable the Court to settle at once the whole controversy. Mclntire vs. Hughes, 4' Bibb, 187. 3 Monroe, 3'98. 4 Monroe, 386. 3 J. J. Marshall, 44. Macey & Co. vs. Brooks, 4 Bibb, 23S. Turner vs. Cox, 5 Litt. Rep. 175. Cummins vs. Boyle, 1 J. J. Marshall, 481.

      The whole equity asserted by the appellants, grows out of the acts of others than those of N. and J. Dick and Company. If is alleged that Booker is now prosecuting the suit on the bill of exchange, in the name of N. and J. Dick and Company; and yet he is not made a party.
    The assignor of a judgment, when a bill is filed against the parties to the judgment, must be made parties to the bill. The proceeding here is against an alleged nominal party; and yet the real party is not allowed an opportunity to be heard. If the appellant is successful in this proceeding, Booker will not be prevented suing on the bill of- exchange, if he gets possession of it. Thus the controversy between the parties to the bill of exchange will not be settled by the present proceedings.
   Mr. Justice Barbour

delivered the opinion of the Court.

This is an appeal from a decre'e. of the Circuit Court of the United States, for the Southern District of Mississippi.

The appellant was the payee of a bill of exchange drawn by Cain and Lusk, which he endorsed to Parham N. Bopker, who endorsed it to N. and J. Dick and Company.

The.bill.having been dishonoured, Dick and Company brought suit thereon, and recovered, a judgment-against Atkins, the first endorser.

Upon this judgment an execution was issued, a forthcoming bond was taken and forfeited; by reason whereof, the bond, according to a statute of Mississippi, had the force of a judgment; on--which execution was issued.

. Atkins thereupon filed his bill in equity, in which he alleged that he had ascertained, and verily believed, that Dick and Company had been paid the amount of the bill of exchange, before the institution of their suit against him; but that he had no knowledge of it at the time-of the giving and forfeiture of the forthcoming bond. That he was advised, and verily believed, that the bill of exchange was paid to Dick and Company, by Parham N. Booker, before the suit was brought; and-that it was paid,because of effects placed in the hands of said .Booker byLusk, one of the drawers of the bill of exchange. That he was advised, and believed, that he would have had a good defence against Booker, on account of said effects received by him from Lusk, with which to pay the bill, in case said Booker had sued in his own name, thereon. That the names of Dick and Company were used with the intent to defeat him of, that defence, in case he became adyised that sáid effects had been placed in the hands of, Booker by Lusk, with which to pay and satisfy the bill. The bill charged that in these proceedings the appellant had been most palpably defrauded; and that in order to consummate the fraud, Dick and Company had causéd execution to issue on the judgment created by the forfeited forthcoming bond, which was thenin the hands of the marshal; and it prayed, an injunction, a perpetuation thereof, and for general relief. An injunction was granted. The defendants demurred' to the bill, assigning three causes of demurrer,-to wit: 1. That Booker was not made a party. 2./íhat neither the amount, hor, the value, nor, the nature of the effects, charged in the bill to have been paid to the second endorser, was specified; and that it was not stated what part ‘or portion was discharged, nor whether any of such effects proved to be productive. 3. That the bill contained no matter or grounds on which the Court could grant the relief prayed for. The Court sustained the demurrer, and gave the' plaintiff leave to amend his bill; and he declining to make any amendment, they dissolved the injunction, and dismissed the bill for want of proper parties.

From that decree this appeal was taken. The defendants, having demurred to the bill* in the consideration of the case, we are to take all its allegations to be true.

_The bill is somewhat inartificially drawn; but it substantially alleges that before the institution of the suit at law against the plaintiff, the amount of the bill of exchange in question had been paid to Dick and Company, by méans of effects furnished by one of the drawers. The particular language of the allegation is, that it was. paid to them; because of effects placed in the hands of Parham N. Booker, by Lusk, one of the drawers. Now we understand the import of this to be, that these effects constituted the means by which the payment was effected; whether Booker sold the effects, and paid the bill out of the proceeds of the sale, or detained them himself, and in their stead advanced' their value in money, is an inquiry of no moment; because in either aspect of the. case, the effect would be, that the bill was paid, by means’ furnished by one-of the- drawers. And upon' this state of facts, it is clear that the same operation which satisfied the claim of Dick and Company, at the same time extinguished all the rights as well as liabiiitiés growing out of the bill of exchange: because they, being the lasfc- endorsers, were the persons entitled'to receive .the amount of the .bill; and the drawers being liable to every other party,’ and the 'funds by which the payment was effected being furnished by them, there was no longer •any person who could, have a claim against any other, founded upon-a bill thus paid. .

Upon this view of the subject, the question is, whether a party who has received payment of his debt, shall be permitted by a Court of Equity to avail himself of a judgment at law, to enforce a second payment; and that too, against a party who did not know of that payment, until after the judgment was obtained. To state such a proposition is to answer it.

The bill further charges the defendants with fraud, and this, too, is admitted by the demurrer. If there be any one ground upon which a Court of Equity affords relief with more, unvarying uniformity than on any other, it is an allegation of fraud, whether proven or admitted. Whilst, therefore, a case stands before us upon such a bill and demurrer, we cannot hesitate to say it must be considered as entitling- the party to the aid of a Couirt of Equity.

It is contended that Booker ought to have been made a party. And the ground taken is, (and this is the first cause of demurrer assigned,) that every person ought to.be made a party who has an interest in the subject of controversy; and it i&said that Booker is in that situation. We think that he has no inter*. 1 in the object of this suit; in other words,, that he is not interested in the question between these parties. The ground of equity is, that Dick and Company, the plaintiffs in the judgment at law, received payment of the amount recovered by them, before they brought theii suit. Now if he.were made a party at all, it must be as defendant. But .the plaintiff; neither sought, nor couid he obtain, any decree against him. He only asked a perpetual injunction against Dick and Company, on the ground of an equity attaching upon them personally. If the plaintiff should prevail against them, it would be upon the ground that the amount of the bill had. been paid to them by the drawers: supposing that to be the case, then Booker wo.uld not be liable to-them as endorser. If, on the contrary, the plaintiff should fail, Booker’s rights would in nowise be concluded or affected; but if, as endorser, he should be made liable to Dick and Company, then; as endorser, he could recover against the plaintiff, Atkins, ás endorsee to him. But again: Booker’s right and liability upon the. bill are at law. We cannot, therefore, perceive any ground upon which, in a contest between two parties to a bill, founded upon .an allegation of equity attaching personally to one of them, a third party can be brought .into a Court of Equity to mingle in that litigation, when the attitude in which he stands is purely legal. If'the equity attached to him, then- he ought to be made a party: b.ut as it does not, a Court of Equity is not the forum in which to discuss or-to decide either his right or liability. A very familiar case will illustrate this principle. Suppose 'an obligee to assign a bond, on which the assignee recovers a judgment, where, by statute, he may sue in his own name; and that the obligor thereupon files his'bill in equity, praying for a perpetual injunction, on the ground of some equity attaching upon the obligee before the assignment. In such a case, the assignor must be made a party, because he is directly interested in discussing the equity alleged to exist against him. But if, on the contrary, the bill were filed upon the ground of some equity not existing- against the assignor, but arising between the obligor and assignee, after the assignment, then there would be no pretence for'saying that the assignor ought to be a party: plainly, because, in that particular question, he has no interest whatsoever. Whichever way that question may be decided, the relation between the assignor and assignee, and the liability of the former to the latter, growing out of the assignment, are purely questions of law; wholly unaffected by the decision of the case iti. .equity.

I’he secopd ground of demurrer is, that neither-the amount, nor value, nor nature of the effe'cts charged to have been- paid, is specified-;. nor is it stated what' portion of the debt was discharged, nor whether any of such effects proved to be productive. This cause of demurrer we consider altogether untenable. The allegation in the bill is, that the money mentioned in the bill of exchange was paid to Dick and Company. This allegation covers the whole equity of the case; because it asserts that there was a payment, and that, a payment of the’ money mentioned ih the bill; that is, the whole amount of the bill.

The third cause of demurrer, that there is^o ground laid in the bill for relief, has been already discussed; and we have shown that the bill does contain sufficient allegations to entitle Jhe complainant to the aid of a Court of Equity.

We are of opinion that the Circuit Court, instead of sustaining the -demurrer, ought to have overruled it; and ordered the defendants to answer.

The decree is therefore reversed, and the cause remanded to the Circuit Court, to be proceeded in, in conformity with this opinion, and as to equity and justice shall pertain,


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    George Runyan, Plaintiff in error, vs. The Lessee of John G. Coster and Thomas K. Mercien, who survived John Hone, Defendant in error.
    The legislature of the state of New York, on the 18th of April, 1823, incorporated “The New York and Schuylkill Coal Company.” The act of incorporation was granted for the purpose of supplying the city of New York and its vicinity with coal; arid the company having, at great expense, secured, by purchase, valuable and extensive coal lands in Pennsylvania, the ’legislature of New York, to promote the supply of coal as fuel, granted the incorporation, with the usual powers of a body corporate, giving' to it the powers to purchase and hold lands, to promote and attain the objects of the incorporation. The recitals in .the act of incorporation show that this power was granted with special reference to the purchase of lands in the state of Pennsylvania. The right to hold the lands so purchased depends on the assent or permission; express or implied, of the state of Pennsylvania.
    The policy of the state of Pennsylvania, on the subject of holding lands in the state by corporations, is clearly indicated by the act of the legislature of Pennsylvania, of April 6, 1833. Lands held by corporations-of the state, or of any other state, without license from the commonwealth of Pennsylvania, are subject to forfeiture to the tommonwealth. But every such corporation, its foeffee or foeffees, hold and retain the same, to be divested or dispossessed by the commonwealth,-by due course of law. TJie plain interpretation of this statute is, that until the claim to a forfeiture is asserted by the state, the land is held subject to be divested by due course of law, instituted by the common-, wealth alone, arid for its own use.
    The Supreme Court of Pennsylvania having decided that a corporation has, in that state, a right to purchase, hold, and convey land, until some act is done by the government, according to its own laws, to vest the estate in itself; the;estate may. remain in a corporation so purchasing or holding lands: but such estate is defeasible by the commonwealth. This being the law of Pennsylvania, it must govern in a case where land in Pennsylvania had been purchased by a corporation created by the legislature of New York, for the purpose of supplying coal from Pennsylvania to the city of New York.
    The ease of Fairfax us. Hunter, 7 Cranch, 621, cited with approbation.
    In the case of the Bank of Augusta vs. Earle, 13 Peters, 584, and in various other cases decided in the Supreme Court, a corporation is considered an artificial being, existing only in contemplation of law; and being a mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. Corporations created by statute must dépend for their- powers, and the mude of exercising them, upon the true construction of the statute,
    A corporation can have no legal existence out of the sovereignty by which it is created; as it exists only in contemplation of law, and by force of the law: and when that law ceases to operate, and is no longer obligatory,' the corporatiori can have no existence; It must dwell in the plape of its creation, and cannot migrate to another sovereignty. But although it may live and have its being in that state only, yet it does not follow that its existence there will not be recognised in other places,; and its residence in. one state creates no insuperable objection to its power of contracting in another. The corporation must show that the law of its creation gave it authority to make such contracts. Yet, as -in the case of a natural person, it is not necessary that it should actually exist in the sovereignty in which the contract is made. It is sufficient that its existence, as an artificial person in the state of its creation, is acknowledged and jeeognised -by the state or nation where the dealing takes place; and that it is permitted by the laws of that place to exercise the powers with which it is-endowed.
    Every power which a corporation exercises in another state, depends for its validity upon the laws of the sovereignty in which it is exercised: and a corporation can mafie no valid contract, without the sanction, express or implied, of such sovereignty; unless a case should be presented in which the right claimed by the corporation should appear to be secured by- the Constitution of the United States.

      IN error to the Circuit Court of the United States for the Eastern' District of Pennsylvania.
    This was an action of ejectment, brought in the Circuit Court of the District of Pennsylvania, by the defendant in error, the lessee of John S. Coster and Thomas K. Mercien, citizens' of New York, for the recovery of a tract of land in Norwegian township, Schuylkill county, Pennsylvania, The defendant in the Circuit Court was. in possession of-the .land.
    The title of the lessors of the .plaintiff below was founded on a patent from the commonwealth of Pennsylvania, dated December 23, 1824, to Benjamin Pott, granting three hundred acres of land to him, in Schuylkill county; a survey of the land, and a deed executed on the 17th of March, 1S30, by which the patentee conveyed the land to John G. Coster, John Hone, Moses Jaques, and Thomas K. Mercien, of the city of New York, trustees for, the stockholders of the corporation known under the name of the New York and Schuylkill Coal Company, as well for such persons as were then stockholders, as for such persons as might afterwards become stockholders.
    The New York and Schuylkill Coal Company was incorporated by the legislature of New York, on the 18th of April, 1823,
    Moses Jaques, one of the trustees, by direction of the company, conveyed the right and interest in the land held by him under the. deed from'Benjamin Pott and wife, to the other trustees, on the same uses and trusts. The lessors of the plaintiff in the Circuit Court, survived John Hone.
    The defendant below, without offering any evidence, insisted and prayed the Court to charge the jury that the plaintiff, upon the evidence, was not entitled to recover; but the Court gave the contrary direction.
    The jury having given -a verdict for thé plaintiff below, in conformity with the directions, of the Court, and a judgment having been entered on the same, the defendant prosecuted this writ of error.
    The case was argued by Mr. C. J. Ingersoll, for the plaintiff in error; and by Mr. Budd, with whom was Mr. Sergeant, for the defendant.
    Mr. Ingersoll, for the plaintiff in error,
    said, that the case of the United States Bank vs. Earle, 13 Peters, 587, rendered much argument unnecessary. From that case he gathered, 1. That corporations are local as well as artificial bodies; 2. With no powers but what charters create; 3. Especially no extra-territori|l powers, but by comity; 4. That although Courts xnay award the comity of the state; 5. Yet it must not be contrary even to the policy or the interest of the state; still less its law, written or- comnion; 6. That corporations may act extra-territorially, by agents. Whether his was the burden of disproving the comity, might be questioned; but he assumed it so far, to show the general rule of Pennsylvania: if the defendant appeals to an exception, let him show it.
    The law, as settled in 13 Peters, turns on personalty. This is a case of reality; and' all legislation is jealous, and jurisprudence exclusive, as to land. Story’s Cr/’ññict of Laws, 363. ' Jackson vs. Ingraham, 4 Johns. 182. ■ United States vs. Crosby, 7>Cranch, 115. Beatty vs. Knowler, 4 Peters, 168. The law of the state of Pennsylvania is deeply imbued with this principle; even in cases in which corporate powers are not involved. Williams vs. Mann, 6 Watts, 278.-
    By universal law, title to land begins with the government of its locality”; and all tenures depend on it. Not. only title, but disposal. In Pennsylvania, the English mortmain acts are in full force. -3 Bin.'626.- 2 Pennsylvania Black. 40. The case of the -Methodist Church, 1 Watts, 218. By recent act of assembly, these mortmain exclusions are reinforced. Acts of 6th April, 1833.
    Thusth.e general rqle is shown; and the question is driven to an exception'. It has beeh adjudged in Pennsylvania, that corporations may take, though -they cannot hold. Leasure vs. Hillegas, 7 Sergeant and Rawle, 313. But this case does not bind as a judgment on the case in argument, because the-former was a case of domestic, not foreigri corporation. The argument of that case is not to be a judgment to bind this; and that argument is wrong, for by common law, corporations may not take. To do so, is not of their nature, as asserted by Chief Justice Tilghman. 1 Blackstone’s Com. 475. Co. Lit. 40. Indeed, the English mortmain acts are but declaratory of the common law. Ang. and Am. on Corpo. 80. All law,' the original Roman, the English, and the American, require 'that bodifes of land shall not be held • in mortmain. 2 Kent. Com. 269 — 283. ^ Nor is mortmain confined to superstitious or religious tenure, but all holding by any body. Such is the statute 7 Ed.,l ch. 2., A. D. 1279, enlarging Magna Charta of 1217. See Highmore’s History of Mortmain, and Reese’s Cyclopaedia. The’ law of mortmain forbids all holding of lands by artificial bodies. And to talk of English common law" before 1273, is to recur to ages when'we cannot ascertain what law was. 1 Reeve’s History of English Law, ch. 5, p. 229.
    " Nor is English common law the common law of Pennsylvania,; but the English law adopted as it was adapted. Carter vs. Bladen, 2 Bin. 484. Judge Read, in his Pennsylvania Blackstone, 1 vol. 261,hnd 2 vol. 40, is explicit, that there is no common law in that state, but as adopted and modified; and no corporation, but as chartered ; no common law corporation whatever.
    Moreover, there is no analogypáa supposed, between the coporative. capacity and that of aliens, to take land and hold till ousted: because aliens, are presumed to be capable till the contrary is shown. Gouverneur vs- Robertson, 11 Wheat. 356.
    The act’ of incorporation of this company, is thoroughly New - York. A law- of New York,' session 46, ch. 184, p. 217, authorized it to hold five hundred thousand dollars worth of land in Pennsylvania, for the benefit of the city of New York; a sum that would buy a county, perhaps a state. • Siich act is void; not merely voidable : and void, whether the hold it gives over land in Pennsylvania be conferred on a body corporate, or orí an individual.
    Mr. Budd, for the defendants in error,
    contended, that if their title were directly in a corporation, not authorized to hold lands in Pennsylvania; still the position of the plaintiff is untenable, because the requisitions of the law to divest a title of that description, have not been. complied with. Even under the statutes of mortmain, a corporation can take, although it cannot hold land -as against the state. The corporation acquires, and may convey “ a fee simple, defeasible by the commonwealth” alone; and until an escheat be regularly effected, it possesses all the rights and remedies incident to ownership. The right on the part of the state'to enter, does not exist until office found. Leasure vs. Hillegas, 7 Sergeant and Rawle, 313. Baird vs. The Bank of Washington, 11 Sergeant and Rawle, 418. In both of these decisions, the case of an alien is considered as analogous to that of a corporation; and the doctrine in Fairfax vs. Hunter’s lessee, 7 Cranch, 618, is adopted. There is no interval between the grant to the corporation, and the com-pletion of the escheat, in which a trespasser can intrude. . The plaintiff is really adverse to the state; and his success here would impair its rights, if any exist, which for the purpose of the present occasion he professes to vindicate. If the title be void, as is contended, then it never vested in the corporation, nor in trustees for the use of the corporation; consequently, the right of escheat cannot exist. It is therefore essential that the state should be able to trace the title to the corporation. Possession by the corporation is also important for the purpose of the escheat; for how can it be effected, when the person in possession does not claim under a corporation ?
    The -right of possession being in the corporation, the right to sue to recover it, must also exist. In Leasure vs. Hillegas, the plaintiff was alienee of the corporation, and his right to sue. was sustained. The right to sue is essential to the protection of all other rights. The doctrine, that the rights of a corporation to sue out of the place of its locality, arises from comity, and cannot exist in opposition to the laws of the state in which the suit is instituted, is inapplicable to the present case; for there is in Pennsylvania no such prohibition; and the escheat laws evidently admit the existence of rights in corporations, over lands which they are not licensed to hold; which Courts will aid them to enforce as against strangers. No authority has been adduced to sustain that distinction between domestic and foreign corporations. Remington vs. The Methodist Church, 1 Watts, 218, is a construction of the act of Assembly of 1730, relating exclusively to religious societies; and the cáse in 6 Watts, 280, refers to the exercise of judicial authority, and not to the voluntary appointment of trustees.-
    The act of Assembly of the 6th of April, 1833, which has been relied upon by the opposite counsel, prescribes a mode of proceeding which must • be. pursued before any argument derived from it can be sustained. It makes no distinction between domestic and foreign corporations. .The right of a corporation to hold.and retain the land subject to be divested or dispossessed at any time by the commonwealth,, according to due course of law, is conceded .by the preamble. Her title is to be established, and her right authenticated by “ solemn matter of record,” which is the only evidence of the right of the state. Even after the inquisition directed by the first and the fifth sections, no power exists in any officer of the state to declare the land forfeited; but the proceedings are to be reported to the legislature. ' It is consistent with the spirit of the act, to suppose, that as the corporate franchise, and not the .corporators, was the object of hostility, no course detrimental to the latter would be pursued; but only such measures operating on the officers of the company as would prevent future attempts to exercise corporate authority in. the state. The second section contains a release, which the defendants in error, if they were at any time within the prohibition of the law, would claim the benefit of before the inquest. The place and form of the trial, and the officer to conduct it, afe prescribed; and it is incompetent for the plaintiff in error to make-a different selection. A reward to informers is prohibited, and it is made the duty of-a public officer to collect the evidence, thereby excluding the interference of strangers. But if the act were adverse to the defendants, as their title was acquired prior to its. passage, it should not be construed as having a retrospective operation to their-injury
    ■ But the disability qf corporations is not in the present suit a consideration of the great importance-which has been-ascribed.to it; as the defendants in error are trustees, .and hold the legal title, which is all that is requisite in the action of ejectment. 9 Johns. Rep. 60. It is of no importance in -a controversy with a stranger, for whom they hold. But it is said, that the trust is void. If it be so, what becomes of the legal estate? It cannot revert to the grantor, for he has received a valuable consideration for it. If there be a trust resulting by implication of law, would it not be for those’ who paid the purchase money ? Or if the trust be void, would not the trustees hold the land discharged of the trust ? — a doctrine which is sanctioned by the case of the Attorney General vs. Sir George Sands, Hard. 495, ' 4 Kent’s Com. 426. In either event the title of the defendants in error would be unassailable. In the case of an alien, it has been determined, “ that the king cannot be entitled on inquisition; for the estate in law is in the trustee, not in the alien, but he must sue in Chancery to have the trust executed.” 1 Ccmyn’s Digest, 559. The commonwealth, therefore, could not acquire title until the legal estate had vested in the corporation The plaintiff in error had no claim to the- consideration of a Court of Equity, but that defect in his case cannot aid him in a Court of law. He cannot ask the Court to look beyond the legal title, that he may discover and be assisted by a weakness in the trust, the investigation of which is foreign to the purpose of the action of ejectment. The argument that the trust is void and extinguished, if correct, would, in the present action at least, leave the legal estáte unaffected; and in any other proceeding the defendants in error are prepared to show such a conformity to the laws of Pennsylvania, as will be amply sufficient for their protection. That a r/iode exists, or can be devised, by which a trust for a corporation shall not pro, tect the estate from forfeiture may be true; but in the prosecution of the remedy, that “ due course of- law,” alluded to in the pre? amble to the act of Assembly of the 6th of April, 1833, should never be lost sight of. The right to sue in the federal Courts, does not depend on the capability of thé cestui que trust, as has been repeatedly determined. 4 Cranch, 306. 8 Wheat. 642.
    . The trust in this case was not, as is alleged, created by a corporation, but by Benjamin Pott, the grantor. .If it had been, there is nothing in the charter of the New York and Schuylkill Coal Company, which prohibits the creation of. trusts; much less is there any prohibition of. a contract with 'trustees holding lands in Pennsylvania, to enable the company more efficiently to prosecute the business for which it was organized.
    Having considered the insufficiency of the case of the plaintiff in error, even if the title were in a corporation not licensed to hold lands in Pennsylvania, and also the further obstacle arising from the trust, it will now be proper to inquire into the-actual character of • the title of the defendants in error. ' It is denied that it is a trust for a corporation. If there bé any doubt upon this point, it should operate in favour of the defendants; for the Court, adopting the usual mode of'construction,-will give a strict construction to statutes so highly penal as the statutes of mortmain, and the act of Assembly of- the 6th of April, 1833.. In resisting an attempt to cause a forfeiture, our conveyance is entitled to the most favourable construction. The title is in.trust for the “individual stockholders” of the company, which is a description of persons sufficiently precise. There is no title given to the corporation. The corporation has no control over the property,--other than that of ordering sales; an authority designed to áid the execution of the trust, and protect it from abuse. Its officers could neither cut the timber, nor break the soil. It can exercise no authority over the rents and profits. 'If the charter were to be repealed by the legislature of New York, according to the. power reserved in it, or from any other cause it were to cease to exist, the title would not be affected by it. The assist- _ anee of the directors in effecting sales could, be dispensed with; and thus the only connection between the trustees and the corporation be terminated. The latter clause of the trust refers to the charter, not for'the purpose of deriving authority from it, but merely to.de sígnate and ascertain the correct organization of the body which is to exercise the authority given by the deed of trust. As the power to sell is derived from the deed of trust, and not from the charter; the phrase “ in virtue of their charter,” can have no other meaning, it is an authority designed to save the-trust from abuse. It might be exercised by a stranger. Suppose a trust for an infant, and the trustee is authorized to sell, as directed of a corporation or an alien, would the title be ’in the corporation or alien ? If the authority to superintend sales had been given to any other corporation, would the title have been in it, and not in the trustees, for the use of the individual stockholders of the New York and Schuylkill Coal Company.? How can it be said that the corporation holds the land, 'or that it is held in trust for it, when the-trust is expressly declared to be for the individual stockholders; and the-connection with the corporation is limited to an authority to order sales, the' existence of which power, as it may be exercised by the stockholders, is not essehtial to- the execution of the trust. But it is averred that the trust is illegal and void, although it be for an unincorporated association; but no authority has been referred to which sustains the position : Remington vs. The Methodist Church, as has already been stated, relating exclusively-to religious associations.- The defendants do not claim to derive title under any statute of New York, or any corpo-’ ration chartered, by. that state; but from a conveyance executed in conformity-to the laws of Pennsylvania.
   Mr. Justice Thompson

delivered the opinion of the Court.

This case comes up on a writ of error from the Circuit Court, of the .United States for the Eastern District of Pennsylvania.

It is an action of ejectment brought to recover possession of about two hundred and thirteen acres of land, in the township of Norwegian, in the county pf Schuylkill. .Upon the trial, the lessors of the plaintiff gave in evidence a warrant'issued by-the secretary of the land office, in the commonwealth of Pennsylvania, authorizing a survey for Benjamin Pott, for the quantity of land applied for by him, bearing date the 23d of December, in the year 1824. And also a survey of the land, containing two hundred and thirteen acres and fifteen perches, accepted on the 11th August, 1825, embracing the land in controversy ;• together with a deed from Benjamin Pott and his wife, to John G. Coster, John Hone, Móses Jaques, and Thomas 3L Mercien, for the samé premises, bearing date the 17th of March, in the year 1830, conveying to them in fee simple the said lands, upon certain trusts therein specified, to the sole use and behoof of the several individual stockholders of the corporation known under the name, style, and title of the New York and Schuylkill Coal Company. And further gave in evidence, a deed from Moses Jaques, one of the trustees, to John G. Coster and Thomas Mercien, the two surviving trustees named in the last mentioned deed, bearing date the 25th of July, 1837, releasing and conveying to his said co-trustees, in fee simple, all his right, title, interest, and trust, in law or equity, in the premises,-to have and to hold the said tract of land to them, their heirs and assigns forever; to such uses and upon such trusts as are mentioned and contained in said deed. The death of John Hone, one of the trustees named in the first mentioned deed, having been proved, and . that the defendant, John Runyan, was in possession of the premises when the suit was commenced, the plaintiff rested the cause: and thereupon the defendant, without offering any evidence, insisted and prayed the Court to charge the jury that upon this evidence the plaintiff was not entitled to recover. The Court refused to give such charge ; .but, on the contrary, directed the jury that the plaintiff was entitled to recover: whereupon the defendant tendered a bill of exceptions.

The question presented by this bill of exceptions is, whether the lessors of the plaintiff, being trustees of a corporation in the state of New York, could, under the laws of the state of Pennsylvania, take the estate conveyed by Benjamin Pott and his wife to the trustees of that incorporation. If the lessors of the plaintiff had the legal-estate in the premises in question vested in them, their right to recover followed as matter of course'; nothing having been shown on the part of the defendant to impugn that right.

The rights'and powers of a corporation were very fully examined and illustrated by this Court, at the last term, in the case of the Bank of Augusta vs. Earle, 13 Peters, 584. In which case, and in various other cases decided in this Cqurt, a corporation is considered an artificial being, existing only in contemplation of law; and being a mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. That con. ora tions created by statute must depend for their powers and the mode of exercising them, upon the'true construction of the statute. A corporation can have no legal existence out of the sovereignty by which it is created; as it exists'only in contemplation of law, and by force of the law: and that when that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation ; and cannot migrate to another sovereignty. But, although it must live and have its being in that state only, yet it does not follow that its existence there will not be recognised in other places; and its -residence in one state creates no insuperable objection to. its power of contracting in another.. The corporation must show that' the law of its creation gave it authority to make such contracts. Yet, as' in the case of a natural person, it is not necessary that it should actually exist in the sovereignty in which the contract is made. It is sufficient that its existence as an artificial person in the state of its creation, is acknowledged and recognised by the state or nation where the dealing takes place; and that it is permitted by the laws of that place .to exercise there the powers with which it is endowed. Every power; however, which a corporation exercises in another state, depends for its validity upon the laws of the sovereignty in which it is exercised; and a corporation can make no valid contract, without'the sanction, express or implied, of such sovereignty.: unless a case should be presented in which the right claimed, by the corporation' should appear to be secured by the Constitution of the United States.

Under this, general view of the rights and powers of a corporation,. arid the- limitation upon the exercise of such powers in places Out of the jurisdiction where granted; the application of them to the case now, before-the Court is the next subject of inquiry.

■The powers vested in the trustees of- the New York and Schuylkill Coal Company, and the right to take the estate, and execute,the trusts vested in them by the deed-from Benjamin Pott and his wife, will depend upon the act of incorporation by the legislature of New York, .of the 18th of-April, 1823. The. recital in that act-shows that the incorporation was granted for the purpose .of supplying the eity of New York and its vicinity with coal: and that.the.'company had, at great expense, secured the purchase of valuable and extensive coal lands in the state of Pennsylvania; and. that the legislature being disposed to encourage the 'developement of our internal resources, and being sensible of the importance.óf a supply of fuel to the city, and for the better security of the-persons investing their money in an undertaking so extensive, and requiring so large a Capital, granted the incorporation, with-the usual powers of a body corporate ; .and giving to the corporation the right'to purchase, hold, and convey any estate, real .or personal, for the use of the said corporation; provided, that the real estate Or their interest therein, so to bp holden, shall be such only as shall be requisite to promote and obtain the objects of the-incorporation. The right fo purchase and hold real estate is, therefore, expressly vested in’this corporation; and the recitals show that this power was granted .with special reference to the pürchase of lands in the state of Pennsylvania. And the deeds -given in evidence show, that the legal estate in the lands, in question . is vested in the lessors of the .plaintiff, in trust for the. stockholders; and the trusts' therein declared, are’for the purposes of carrying into execution the -great and leading object of the corporation. The capacity, therefore, of the lessors of the plaintiff, to take the lands in question, for the use of the stockholders of this incorporation is very clearly shown. And the right to hold the lands must depend upon the assent or permission, either express Or implied, of -the state of Pennsylvania.

The policy of that state upon this subject is clearly indicated by the act of the 6th of April, 18-33; relative to the escheat of lands held by corporations without the license of .the commonwealth. , It recites, that whereas it is contrary to the laws- and policy of the state -for any corporation to prevent or impede the circulation of landed property from man to man, without the license of the commonwealth ;/ and no corporation, either of this state or of any other state, though lawfully incorporated, can in any case purchase lands within this state, without incurring the forfeiture of said lands to the commonwealth, unless such-purchase be sanctioned and authorized by an act of the legislature; but every such, corporation, its feoffer or feoffers, hold and retain. the same, subject to be divested or dispossessed at any time by the commonwealth, according to due course of law.

The plain and obvious policy here indicated, is, that although corporations, either in that or any other state, (no distinction- being made in this respect,) may purchase lands within the state of Pennsylvania, yet they shall be held subject to be divested by forfeiture to the commonwealth. And the act then points out the mode and manner in-which proceedings shall be instituted and carried on to enforce the forfeiture: necessarily implying, that until such claim to a forfeiture is asserted-by the state, the land is held subject to be divested by due course of law, instituted by the commonwealth alone: and this conclusion is fortified by the provision in the fourth section of the act, that the rights of common informers in relation to escheats, shall not apply to proceedings under this statute. But it is made the exclusive' duty of the escheator to prosecute the right of the commonwealth to such lands.

' The doctrine of the Supreme Court of Pennsylvania, in the case of Leasure vs. Hillegas, 7 Binney, 313, is directly, applicable to this case. The question then before the Court was as to the right of the Bank of North America to purchase, hold, and convey the lands in.question: and the Court took the distinction between thé right to purchase and the right to hold lands, declaring them to be very different in their consequences: and that the right of a corporation in this respect .was like an alien, who has power to' take, but not to hold lands: and that although the land thus held by an alien may be subject to forfeiture after office found, yet until some act is done by the government, according to its own laws, to vest the estate in itself, it remains in the alien, who may convey it to a purchaser ; but he can convey no estate which is not defeasible by the commonwealth. Such being the law óf' Pennsylvania, it must govern in this case. But the principle has received the sanction of this Court, in the case of Fairfax vs. Hunter, 7 Cranch, 621; where it is said, that it is incontrovertibly settled upon the fullest authority, that the title acquired by an alien, by purchase, is not divested until office found.

We do not enter at all into an examination of the question whether any, and if any, which of the English statutes of mortmain are in force in Pennsylvania • but place our decision of this case entirely upon the'act of that state, of the 6th of April, 1833, and the doctrine of the Supreme Court in the case of Leasure vs. Hillegas; which we think clearly establish the right of the lessors of the plaintiff' to hold the premises in question, until some'act shall be done by the commonwealth-of Pennsylvania,'according to its own laws, to divest that right, and to vest the estate in itself. The legal estate is accordingly in the lessors of the plaintiff, and the defendant cannot set up any right of forfeiture which the state of Pennsylvania may assert. That is a matter which rests entirely in the discretion of that state.

The judgment of the Circuit Court is accordingly affirmed, with costs.

. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.


text:
    Isaac T. Preston, Executor of James Brown, deceased, Plaintiff in error, vs. Richard R. Keene, Defendant in error.
    Louisiana. A paper was executed by R. R. K., of the city of New Orleans, stating that the grantor, for, and in consideration of, a certain lot or parcel of land, (describing it,) conveyed and transferred to J. B. and S. B. all his right, title, and interest in a certain tract or parcel of land, (describing it,) hereby warranting and defending unto the said J. 3. and S. B. all his right and title in the same, and unto all persons claiming under them. The paper called, under the laws of Louisiana, “ An Act of Sale,” was signed by R. R. K., J. B., S. B., and a notary of New Orleans; and was deposited in the office of the notary. •This was not “ an exchange,” according to the laws of Louisiana; and J. B. and S. B. did not, by accepting the transfer of the property made by the same, and signing the paper, .incur the two obligations imposed on all vendors by the Civil Code — that of delivering, and that of warranting, the lot of ground sold to R. R, It. — and (lid not thereby become liable for the value of the property stated in the said “Act of Sale” to have been given for the property conveyed thereby.
    “ Exchange,” according to the Civil Code of Louisiana, imports a reciprocal contract; which, by article 1758 of that Code, is declared to be a contract where the parties expressly enter into mutual agreements.
    An exchange is an executed contract: • it operates, per se, as a reciprocal conveyance of the thing given, and of the thing received. The thing given or taken in exchange must be specific, and so distinguishable from all things of the like 'kind as to be clearly known . and identified. Under the Civil Code of, Louisiana, the exchanger who is evicted has a choice either to sue for damages, or for-the thing he gave in exchange. But he must first be evicted, before his cause of action can accrue.
    IN error to the Circuit Court of the United States for East Louisiana.
    In May, 1338, in the Circuit Court of the United States for.the Ninth Circuit and Eastern District of Louisiana, Richard Raynal Keene filed his petition against Isaac T. Preston, as executor of James Brown, deceased, alleging that, by virtue of a notarial contract, made iirNew Orleans, on the 21st day of August, 1807, the said James Brown and his brother, Samuel' Brown, also since deceased, became bound for a valuable consideration", &c., to convey and deliver to the petitioner a. lot-of ground’of specific dimensions, containing seven thousand two hundred square feet, situated in or upon the New Orleans or Gravier batture.
    The case was argued by Mr. Crittenden and Mr. Clay for the plaintiff in error; and by Mr. Jones and Mr. Key for the defendant.
    • The decision.of the Court having been made, principally, on the facts of the case, the arguments of the counsel are not stated.
    The case was tried before the Circuit Court, upon the evidence and exhibits in the same; and a decree was rendered for the complainant for thirty-five thousand five hundred dollars; or that the defendant, the executor of James Brown, should, on or before the 10th day of July then ensuing, convey to said plaintiff, with good and legal title, a lot of ground of the value of thirty-one thousand five hundred dollars, containing sixty feet in front by one hundred and twenty feet in depth, situated on'the batture in front of the suburb St. Mary, in New Orleans, the same that was adjudged to John Gravier by the Superior Court of the late Territory of Orleans, in the month of May, 1807; then said judgment, exclusive of costs, shall be deemed satisfied.
    The defendant prosecuted this appeal.
    The record from the Circuit Court of Louisiana brought up all the testimony exhibited in the cause before that Court.
   Mr. Justice Barbour

delivered the opinion of the Court.

This. case comes before us, by appeal, .from a decree of the Circuit Court of the United States, for the Eastern District of Louisiana.

It was a petition, according to the course of practice in that state, but which we consider as substantially a bill in equity, filed by the appellee, against the appellant, as executor of James Brown deceased; stating, that James and Samuel Brown had become bound for a valuable consideration, by them received, to convey to 'him a lot in New Orleans, by a notarial contract, bearing date 'the 21st of August, 1-807;. that',he had in vain demanded of James Brown a fulfilment of his contract in relation to the lot; that said James Brown having died, and constituted the appellant his executor, by his last will,- the executor had duly qualified as such, and taken upon himself the burden of its execution. And praying, that said Brown’s executor might be condemned hnd adjudged, to convey and deliver to him, with good and valid title, the said lot, or to. pay .to him the value thereof; which he stated to be, at the time of filing his petition, thirty-seven thousand five hundred dollars.

Brown’s executor answered, setting forth the origin and character of his right to the lot in question: that it was a lot in the batture of New Orleans; .that a certain John Gravier had, by a judgment of the Superior Court of Orleans, recovered the batture in front of the suburb of Saint Mary; that he had sold two-thirds thereof to Peter Delabigarre, who sold one-half of his interest to Edward Livingston ; that -Delabigarre died, having by his will appointed certain trustees, with direction to make partition of said batture ; that the trustees and.Livingston did make partition thereof on the 14th of August, 1807, in which it. was ¿cknowledged that a certain lot therein described, which is the one now in question, was to be conveyed to James Brown, who had been employed as counsel in prosecuting the claim of Gravier to the said property; and the trustees agreed to convey to James Brown the said lot, out of their proportion. of the batture; that it was in consideration of James .Brown’s right, such as before stated, in a lot, on the batture y that Keene made the conveyance in the notarial act of the 21st of August, 1807. ' He denies that Brown ever conveyed, or agreed himself to convey title to the lot to the plaintiff, but only agreed to substitute plaintiff to himself, to receive such title as the representatives of Delabigarre and Livingston could make. He avers, that on the day after the notarial act aforesaid, to wit, the 22d of August, 1807, Brown addressed a letter to the executors of Delabigarre, acknowledging that the plaintiff had become the owner of the lot due .to him by Edward Livingston, and requesting them to execute to the plaintiff the necessary deeds to convey the property.

Livingston, it seems, was the one who had employed Brown in Gravhr’s suit, to prosecute the claim to the batture; and the lot .in question was to be Brown’s compensation for his services.

The answer, then, relies upon certain correspondence between Keene and Brown,in relation to this lot, as explaining the understand-, ing of the parties, as to the nature of the contract'between them concerning it. The answer avers that Keene was one of the counsel for the corporation of New Orleans, in Gravier’s suit against them for the batture; that he was perfectly acquainted with Brown’s right to the lot; and that it was the right of Brown thus known to him, and not a title from and warranted by Brown, which was the consideration of the deed,' or notarial act of sale, of the 21st of August, 1807, which is that on which Keene founded his right of'recovery. The answer, finally relies on the prescription of one, five, ten, twenty, and thirty years. The Circuit Court decreed in favour of Keene, thirty-one thousand five hundred dollars, with costs; and that if Brown’s executor, should, by' a given day, convey to Keene a lot of that value, containiiig sixty feet in front, by one hundred and twenty feet in depth, situated on a part of the batture particularly described, then that the judgment, exclusive of -costs, should be satisfied; From that.decree, this appeal is taken.

The following is the notarial'contract, or act of sale annexed to Keene’s petition, and on which his claim is founded.

“ Know ¿11 men by these presents, that I, Richard Raynal Keene, of the city of New Orleans, for and in consideration of a certain lot or parcel of land, consisting of sixty feet front and one hundred and twenty feet deep, situated on the batture,-lately decreed and adjudged to John Gravier by th.e Superior Court holden in said city, have conveyed and transferred, and by these presents do convey and- transfer unto James Brown and Samuel Brown, of said city, all my right, title, and interest in and to a .certain tract or parcel of land,- consisting of five acres front and forty acres deep, and' situated at the English turn on the left bank of the Mississippi, be the same more or less; which said.tract of land, I, the said Keene, purchased in the year 1805 of Helene Modeste Barbinnée Guinault, hereby warranting and defending unto the said James, and the said Samuel, all my right and title, as aforesaid, and unto all persons claiming under them.”

The first question which arises, and that, indeed, which lies at the very foundation of the case, is, what is the true interpretation of this act of sale, or notarial contract ?

.On the part of the appellee, it is contended that it is an exchange; that by the Civil Code of Louisiana, in évery contract of exchange, each party is individually considered in the double light of vendor and vendee; that Brown being considered as vendor of the lot stated in the act of sale, and the lot being the consideration for Keene’s conveyance, it follows, that he incurred the two obligations \/hich the Civil Code imposes on all .vendors, to wit, that of delivering,' and that of warranting] the. thing • which he sells; that Brown has failed in the fulfilment of both of these obligations, and consequently, was liable to the decree which has been made, as the just equivalent for their non-fulfilment. Aásuming the contract in question to be an exchange, there is no doubt but that the obligations attached to it, and the consequences which flow from it, áre accurately stated in this summary of the -appellee’s argument.

But let us examine whether the contract in question is of the class to which this course Of reasoning assumes that.it belongs. In article 263Ó of the Civil Code, an exchange is defined to be “a contract by which.the contractors’give to one another one thing for another, whatever i£ be, except money; for in that case, it would be a sale.”'

This definition,proves, as the term exchange, ex vi termini, imports, that it is what is denominated in the Civil Code, a reciprocal contract; which, by article 1758 of that Code, is declared to be a contract, where the parties expressly enter into mutual engagements. The question then, is, does the act of sale now under consideration contain mutual engagements ?

It commences in the first person: “I, Richard Raynal Keene.” 'It is he, and he only, who speaks throughout the whole instrument] from its commencement to its termination; James and Samuel Brown are mentioned as grantees only; but they do not profess to grant to Keene, no part' of the language being theirs; the intestimonium clause is also in the first person, flxuá: “ In testimony whereof, I hereto subscribe my name,-this- 21sfc of .August, 1807;” that is, I Richard Raynal Keene. The .engagement] then, contained in this instrument, is that of the person speaking- in it, whose language constitutes the very instrument itself;' But there is no mutual engagement on the part of the Messrs. Browns, because they do not speak; and therefore, the language of the grantor, professing' to convey property, cannot have, the eifect of converting' the grantee himself into a grantor, by the very terms which describe and treat .him as grantee, only. It seemed to' be supposed, that the construction of the act of sale ought to be affected by the circumstance, that the Messrs. Brown also signed it. No such effect can be produced, because the difficulty still remains, that it is Richard Raynal Keene, and,he only, who speaks in'the instrument; their signature, therefore, cannot cause , the' language of him who alone speaks in thé instrument, to be ascribed to those who do not.

Moreover, they signed it for no such purpose ; they did it only, as we feel ourselves authorized to suppose, in accordance with the usage, where instruments are executed before a notary, as this was, and for the purpose of indicating their willingness to aceept the grant. That Such is the purpose for which grantees sign acts of sale executed before a notary, is proven by the record in this case; for we. find, that, one in which Davis grants land to Jones is signed by Jones also; and states upon its face, that the grantee was present, and.accepted the grant.

The truth is, that the lot of land, how in question, is not otherwise mentioned ,in the act of sale than as mere matter of recital .by Keene, the grantor, as the consideration which moved him to make the grant. It is, therefore, undeniably true, that he alone speaks in the instrument, as well in regard to the land conveyed by him, as in relation to that which induced him to make the conveyance.

• But there are other difficulties in the way of the appellee’s construction. An exchange is an executed contract: it operates, per se, as a reciprocal conveyance of the thing given, and of the thing received in exchange. Now, so far from this ground being taken in Keene’s petition, it will be seen that his. allegation is, that the Messrs. Brown, for a valuable consideration received, became bound, by the act of sale of the 21st of August, 1807, to convey and deliver to him a lot of ground, as described in his petition; whereas, the.argument at the bar assumes, that the act of sale was itself the conveyance.

Again: the lot in question is only described as to the extent of its front and depth, its situation on the batture, and the fact of its having been recently adjudged to Gravier by the Superior Court of Orleans; but it is not at all described by metes and bounds: and there were many lots on the batture to which thu. general description would equally apply. Now it enters info the very idea of an exchange, that the thing given or. taken in exchange shall be specific, and so distinguishable from other things of the like kind as to be clearly known and identified. The necessity of the identification of the subject matter of an.;exchange will be rendered apparent by this consideration; that by Article 2633, of the Civil Code, the exchanger, who is evicted by a judgment, of the thing he has received in exchange, has his choice either to sue for damages, or for the thing he gave in exchange. But he must first be evicted before his cause of action can accrue.- Now it is obvious to remark, that this eviction cannot occur in a case where the thing, supposed to have been received in exchange is not specific; is not designated so'as to be distinguishable from many others of the like kind; and where, therefore, there could not be a violation of either of the two obligations imposed by the. Civil Code on all vendors; 1st, that of delivering, and 2d, that of warranting the thing sold: not of the first, because, until it was designated, it could not be delivered; not of the second, because, not having been delivered, there could not be an eviction.

We think,, then, that the act of sale in this case, was in no just sense an exchange; nay, that it in itself imported no contract whatever on the part of the Messrs. Brown to convey the lot in question to Keene.

If, indeed, it could be considered as amounting to a contract .of any kind, it certainly could be nothing more th'an an executory one; and then, from the Uncertainty and ambiguity upon its face, arising as well from the want of description of the lot, ás from the reference to the recent adjudication of the title in favour of Gravier, it would be necessary to look beyond the act-of sale to extrinsic evidence, for the purpose of removing such uncertainty and ambiguity. But as we have already said, we are of opinion that there is nothing on the face of the act of sale which amounts to any contract whatsoever, on the part of the Messrs. Brown, either executed or executory. Whatever claim, then, Keene may have, -must rest for its support upon some other evidence in the récord; and in this view, we proceed to examine the correspondence between Keene and James Brown, which took place in May, 1824.

On the 13th of May, of that year, Brown wrote to Keene, in answer.ío a noté from Keene to Brown, which is not in the record, making ’inquiries in regard to the lot in question, as follows: “ Col. Keene will find the contract between himself and Mr. Brown in. the office of Pedesclaux, at New Orleans. It was drawn up, I think, by Lozano, who, I believe, yet resides there.”

Without .examining in detail several other letters from Keene to Brown, we pass at once to the examination of Brown’s letter of May 15th, 1824, and of Keene’s answer of the 17th of the same month, which will show the understanding of both the parties in relation to the subject. Brown in his lettér writes as follows :

“Paris, May 15, 1824.

“Bear sir, — l am sorry I am unablé to add any thing to the statement I sent you on the subject of the lot promised me by Mr. Livingston in New Orleans. The state of your memory will account for the imperfection of mine, which I trust is not a matter of so much importance, when I feel fully persuaded that the whole was reduced to writing. When last in New Orleans, Col. Davis applied to me on the same subject, atid-I told him that, as I had'by a note to Mr. Livingston substituted you for myself as to any compensation for my argument in that cause,T had never said any thing as to my claim, but had left Mr. Keene to arrange it with Mr. Livingston. You knew the whole transaction just as well as I did, being in the habit of daily intercourse, with Mr. Livingston -and myself. Col. Davis told me he had bought the lot from you, but' I did not ask him any questions respecting it. The size, situation, and boundaries were never described; and I would not have made- any deposition of it, had I not understood you as having conversed with Mr. Livingston, and as consenting to take it. I feel fully persuaded that on-arriving at New Orleans you will find our contract reduced to writing. May you not have passed the order I gave you to substitute you for my expectations, from Mr. Livingston to Col. Davis, and have forgotten if P Be assured of my dispositions that you should obtain all I promised ; • and the best evidence of that disposition is afforded by the fact, that I have nevér claimed any thing from Mr. Livingstqp. I passed merely all my interest without any ultimate responsibility .under the promise he made me to you, and left you to arrange it between you. I think the transaction must have taken place one or two years before you. left the country.

“ I am, sir, very respectfully,

“ Your most obed’t ser’t,

(Signed) “ James .Brown.

“ Col. Keene.”

In answer to this letter, Keene, on the 17th of May, writes to Mr. Brown as follows: “I certainly have no hesitation in acknowledging that your responsibility about the batture lot does not extend beyond your substituting me for yourself, in respect to the conveyance to be made by Mr. Livingston, in the sense explained by you.”

From the correspondence which is here stated, — and there are other parts of Keene’s letters, corroborating that just stated-from his letter of the 17th of May, — we are satisfied that the contract between him and Brown was, that Brown agreed to substitute Keene in his place, and to all his right to the lot in question, and that Keene was to receive from or through Mr. Livingston a conveyance therefor.: that it was not the agreement or understanding of the parties that Brown was to lie under any responsibility whatever as to the titlé: that Keene had knowledge of the origin and nature of Brown’s interest, of the condition of the property, and the title to it: and that he agreed to take that interest, such as it was, and to receive a conveyance, not from Brown, but from the executors of Delabigarre, in whom the legal title was.

Thus understanding the agreement between the parties, we think that Brown acquitted himself of all Obligation which it imposed upon him, when on the 22d of August, 1807, the very day after the act of sale from Keene, Brown wrote to the executors of Delabigarrethe note in the record, requesting them to execute to Keene the necessary deeds to convey to him the lot in question. It was competent to Keene to have called upon Delabigarre’s executors fór a conveyance of the lot, and in the event of failure, or refusal, to enforce it by judicial proceedings. If he has, by neglecting to do so, suffered loss; he must abide the consequences of his own negligence ; and has no claim whatever, in law or- equity, to throw the loss on Brown or his representatives.

The views which we have thus presented being decisive of the case-, it is unnecessary to examine the other questions, which were so fully discussed at the bar.

The decree is reversed, and'cause remanded, with directions to dismiss the petition.

' This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District-of Louisiána, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, ¡and decreed by this Court, that the judgment and decree of the said Circuit Court be, and the same is hereby, reversed, with costs; and that this cause be, and the' same is hereby, remanded to the said Circuit Court, with directions' to dismiss the petition.


author: Mr. Chief Justice Taney

text:
    The Bank of Alexandria, Plaintiff in error, vs. Edward and Francis Dyer, Defendants in error.
    An action was instituted iy the Bank of Alexandria, in the county of Alexandria, against the defendants, residents in the county of Washington, in .the same district, for money loaned. The suit was brought in the county of Washington. The defendants pleaded the statute of limitations of Maryland, which prevails in that part of the District of Columbia, and which limits such actions to three years, from the date of the contract. The plaintiff replied, that he was “ beyond seasclaiming the benefit of the exception in the statute in favour of persons “ beyond seas.”
    The words “ beyond seas,” in the statute of limitations of Maryland, are manifestly borrowed from the English statute of limitations of James I., ch. 21; and it has always been held, that they ought not to be interpreted according to their literal meaning; bi t ought to be construed as equivalent to the words, “ without the jurisdiction of the statí ” Ac- - cording to this interpretation, a person residing in another state of the Union as “ beyond seas,” within the meaning of the act of Assembly; and therefore exceptef from its operation, until he should come within the limits of Maryland. This statute r in force in Washington county, in the District of Columbia, and this Court will give it the same . construction it has received in the Courts of Maryland.
    The county of Alexandria, in the District of Columbia, cannot be regarded standing . in the same relation to the county of Washington that the states of this Union stand in relation to one another.
    The counties of Washington and Alexandria together constitute the.territory 01 Columbia, and are united under one territorial government. They have been formed by the acts of Congress into one separate political community; and the counties which constitute it resemble different counties in the same state; and do. not stand towards one another in the relations of distinct and separate governments. Residents of the county of Alexan- ' dria were not “ beyond seas” in respect to the county of Washington.
    IN error to the Circuit Court of the United States' for the county of Washington, in the District of Columbia.
    On the 26th of October, 1835, the plaintiff in error instituted a suit in the Circuit Court of the United States for the County of Washington, in the District of Columbia, against the defendants, for the sum of two thousand five hundred dollars, bv them, the plaintiffs, before that time, in Alexandria, in the Dif.trict of Columbia, lent and advanced to the defendants, at their special instance and request.
    The defendants pleaded ‘the statute of limitations of the state of Maryland, which limits actions of this nature to three years. To this plea the plaintiff replied, that at the time of making of the promise alleged against the defendants, they, the said pi? intiffs, were in the county of Alexandria, in the District of Columbia, beyond the seas; and so continued until the day of the impetration of the original writ in this action..
    The defendants demurred to this repl cation, and the Circuit Court gave judgment for the defendants. The plaintiffs prosecuted this writ of error.

      The case was argued by Mr. Coxe, for the plaintiffs in error; and by Mr. Brent and Mr. Jones, for the defendants.
    Mr. Coxe said: The defendants rely on the statute of limitations of Maryland, which restrains actions of the description of that before the Court to three years. The plaintiffs pleaded, that they were in the state of Virginia, and beyond “ seas;” and therefore not within the provisions of the statute of Maryland.
    The laws of Maryland prevail on this side of the river Potomac, and govern in all cases arising within that part of the District of Columbia which was ceded by the state.of Maryland to the United States. The second section of the act of the Assembly of Maryland, passed in 1815, limits actions on simple contract to three-years.- This limitation is to actions within the province now state of Maryland. The plaintiff never was in the state of Maryland, or in the county of Washington. Those “ beyond seas” are excepted from the operation of the statute; and the question is, whether the plaintiffs are within the statute.
    In Alexandria, on the south side of the Potomac, another limitation law prevails. The limitation by that law is five years. 1 Revised Code of Virginia, 488.
    The act of Congress of 27th February, 1801, declares, tnat the laws of the state to which the ceded territory had belonged, shall-be the laws in the part of the District ceded by the state.
    The terms “ beyond seas,” mean beyond the limits of the state of Maryland, and out of the jurisdiction of the Courts of the state; until 1801, therefore, .the replication of the defendant would have been sufficient. The single question in the case is, then, whether, the counties in the District of Columbia on both sides of the Potomac river, having been ceded- to the United States, the county of Washington is now, as to the part of the District ceded by Virginia, “ beyond seas.”
    The parts of the District separated by the river have been treated, as to the importation of slaves from the county of Alexandria into the county of Washington, as altogether foreign to each other. This ha£ been remedied by special enactments; but such enactments were necessary to change these relations. Act of Maryland, 1802. Act of Congress, 1812.
    In other particulars, the two counties have been held to be distinct. As to the acknowledgment of deeds, a deed acknowledged according to the provisions of the law of Maryland, cannot be admitted of record in the county of Alexandriaand the same rule applies to deeds acknowledged under the Virginia laws, intended to convey lands in the county of Washington. There has been a uniform recognition of the principle, that those parts of the District continued to be distinct communities, by Virginia, Maryland, and the United States.
    It is now contended they are the same community, because they are under the same government. This is not altogether true. Maryland was not a party to the cession by Virginia, nor was Virginia to the cession by Maryland. If- the position be maintained, that because the states of the Union have the same government, they are the .same community, the exceptions in- the statutes of limitations oí one state cannot be pleaded to actions, brought against citizens of the United States. Circuit Courts of the United States are held -by the judges of the Supreme Court in all the states. The states are thus to each other, what the county of Washington is to the county of Alexandria.
    An attempt will be made to show, that under the statute of James, “beyond seas” did not apply to Scotland. That the county of Washington stands in the same relation to the county of Alexandria, that Scotland did to England. ' But the statute of Henry VIII. made the exception in favour of persons “beyond the realm,” and' this was altered by the statute of James, to “ beyond seas.” This was considered as fixing the interpretation in favour of Scotland, so as to prevent the exception being applied, Ireland has always been held to be “beyond seas;” under the exception in the English statute of limitations.
    •It is denied that the adoption of the legislation of the. states, of which the District of Columbia is a part, is to be considered as the legislation of Congress. The laws existing before cession, continued after the cession was made. The people of the ceded territory continued to enjoy the same laws which prevailed before. This principle has been settled by the laws of nations, and by the decisions of .this Court.'
    But if there is any inconvenience in the application of the principles contended for by the plaintiff in error, Congress may afford a remedy. Congress has interposed in other cases. Real property has been made equally liable'to debts, in all parts of the district. So the powers of the Orphans Court have been made the same throughout the counties of Alexandria and Washington.
    As to the legislation of Congress relative to slaves, cited, Lee vs. Lee, 8 Peters, 49.
    Mr. Jones and Mr. Brent considered the laivs prevailing in the District, as flowing from the same fountain. The sovereignty is the same; and the law stands as if Congress had enacted that the limitation of actions of this kind should be three years in the county of Washington, and five years in the county of Alexandria. Thus considered, there is no ground for the exception. The whole District is one political body.
    How has the question as to the operation of the statutes of limitations been settled ? It has been held, that the limitation of actions is a part of the lex fori, and does not affect the contract. They leave it to be enforced elsewhere, according to the laws of the place; and only prevent' the remedy, when the party who claims the application of Jhe'law is within its provisions. He who claims the advantage of an exception must bring himself strictly within it. Angel on Limitations, '218. King.-as. Walker, 1 William Black Rep. 286:
    The Courts of the United States have decided, that the states of the Union are, to a certain extent, foreign to.each other. .They are so, because of their .being separate and distinct governments; and it has,.therefore, been properly held, that the exception in the statutes of limitations, in favour of persons “ beyond seas,” may be well applied to citizens .of different states. But the counties of the District of Columbia are under one government; are one community; and as in the case of Scotland, under the statute of James, the exception has no application. Murray’s Lessee vs. Baker et al., 8 Wheat. 541. 4 Cond. Rep. 320. Shelley vs. Jay, 11 Wheat. 361. 6 Condi Rép. 345. 1 Johns. Cases, 8. 2 M'Cord’s S. C. Rep. 231. 1 Harr, and Johns. Rep. 352.
    [Mr. Justice Catron inquired if the Bank of Alexandria was not incorporated by Congress. This would. make it a corporation of the District. Mr. Brent said it was so incorporated.] .
    The inconveniences attending the construction of. the statute of limitations, contended for by the counsel for the plaintiff in error, would be very great; and the Court would consider arguments ab inconvenienti in such a case, as of great force. If by a broad construction of the statüte they can avoid the inconvenience, they will do so.
    As to the general question, it is contended,.that the act of Congress authorizing the exclusive legislation of Congress over the District, of Columbia, looked to the establishment of a single government. This was the object and purpose of the United States, as are shown by acts of Congress, and the acts Of cession.
    The question of the identity of the whole District'was discussed in the case of Hepburn et al. vs. Ellzey, 2 Cranch, 445.
    It was then decided, that the District was a state, but not a state of the Union, within the Constitution and the laws of Congress. It was held to be a general body politic; but only not constitutionally a state. The case of Scotland is a strong illustration of the principle contended for by the defendants. Scotland was a separate kingdom; but it was not held to be beyond sea, as to England.
    The Court are asked to give a sensible and a practical interpretation of the act of limitations. They have done this in relation to limitation laws of states, and the same should be done in this case; all that is required is, that the person who- claims the benefit of the exception shall have been out of. the state. Is. a. strained construction of the statute, to affect the obvious interpretation of it?
    . There has been legislation by Congress on one point which presents a strong illustration of the principle claimed by the defendants. The act establishing a Circuit Court in the District of Columbia, gives jurisdiction in cases between citizens of the District. This was held to limit the jurisdiction to persons found within, or resident in the District. To be personally resident within one of the counties of the District. This Shows that by adopting a different code for each'side of "the Potomac, they did not intend to make the Courts separate. Always, when Congress intends to provide for any thing like original legislation, they make the provisions óf the laws applicable to the District genérally. They provide for jurisdiction of the Circuit Court over the whole District.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case arises-upon an action of assumpsit, brought-by the plaintiffs in error, against the defendants, in the -Circuit Court of the United States, for Washington county, in the District of Columbia. The declaration contains the usual money counts, to which the defendants pleaded the- statdte of limitations, . The plaintiffs replied-, that they ought not to be precluded from having their action, because at the time of making the promise, they (the plaintiffs) “ were in the county of Alexandria, in the District of Columbia, beyond' the seasand so in the county of Alexandria, beyond the seas, remained until the bringing of this action. To this replication, the defendants demurred. The plaintiffs joined in demurrer; and the Circuit Court gave judgment for the defendants.

The question presented by these pleadings, is the construction of that clause in the Maryland act of limitations, which exempts from the operation .of. the act all persons who are “beyond the seas,” at the time -cause of action accrues, and continues the exemption until they shall return. The words, “beyond the seas,” in this law, me manifestly borrowed from the English statute of limitation. of James I. ch. 21'; and it has always been held, that they ought not to be interpreted according to their literal meaning, but ought to be construed as equivalent to the. words, “ without the jurisdiction c* the state.” According to this interpretation, a person residing in any other state of the Union was “ beyond the seas,’,’ within the meaning of this act of assembly; and therefore, excepted from its operation until he should come within the limits of Maryland.

This statute is in force in Washington county, in this District, where the present action was brought; haying been .adopted for that county by the act of Congress of February 27th,- 1801, together with the other laws of Maryland, • as they then existed. And having been thus adopted, the Court will, of course, give to it the construction which it. has uniformly received in the Courts of Maryland.

But the county of Alexandria, in this District, cannot be regarded as standing in the same relation to the county of Washington, that the states of this Union stand in relation to one anothér., When this act of limitation was passed, (1715, ch. 23,) no doubt a person in Alexandria was “beyond the seas” in relation to Maryland, in the sense in which these words are used in‘the law in question. But it is equally certain, that if the county of Alexandria had after-wards been ceded to Maryland, and been incorporated with it, as á part of the same' political body, the inhabitants of that county would no longer have been within the saving-of this proviso; and the act of limitations would have operated- directly upon them. The same principles must apply, when the county of Alexandria has become united with a portion of Maryland, in which this act of limitation is in force, and .forms with such portion one political community, united under one government. Such is now the condition of the counties of Washington and Alexandria, which together constitute the territory of Columbia, and are united under one territorial government. They have been formed by the acts of Congress into one separate.political community; and the two counties which compose it, resemble different counties in the same state, and do not stand towards one another in the relation of dis-tinct and separate governments. The plaintiffs, therefore, were not “beyond the seas,” in respect to the county of Washington; and the judgment of the Circuit Court must be affirmed.

This cause came on to be heard on the transcript of the record from the'Circuit Court of the United. States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this-Court, that the judgment of the said Circuit-Court, in this cause be, and the same is hereby affirmed, with costs.