author: Mr.. Justice M‘Lean

text:
    John Walker, Appellant, vs. George Parker and others, Appellees.
    The testator devised to'his wife one-third of his personal estate forever, for her own proper use and benefit, and also one-third of all his real estate, during her lifetimé, and in the event of her death, all the right in real property bequeathed to her should be, and by the will is, declared to be vested in his infant son. The testator then proceeded to devise sundry lots and houses to his mother, his sisters, his brothers, separately, and his son. These are given to their respective devisees “ as their property forever.” He then devised the balance of his real estate to his infant son, “ forever,” believed to be certain . lots specified in.the will, Held, that the wife took under the will, óne-third of all the real estate of the testator, during her life, and that his son took a fee simple in one-third of the properly given to the brothérs and sisters of the testator, subject to the devise to his mother, and a fee simple in all the real estate, specifically devised to him, subject to tire devise of one-third to his mother, during her life.
    The devisee of one of the lots devised to him forever, which the Court held was subject to -the right to one-third in the wife of the devisor, and one-third after her decease, in fee to the son .of the devisor, cannot, by a proceeding in Chancery, compel a sale of the property devised, or a partition; without the Court are satisfied it would be for the benefit of the infant son to make sucji salé, and without the consent of all the other parties interested in the property.
    APPEAL from the Circuit Court of the United States for the county of Washington, in the District of Columbia.
    The appellant!, John Walker, filed a bill in the Circuit Court of the county of Washington, stating that James Walker, late of Washington, by his last will and testament, had bequeathed to him and to his then wife* Ann Sophia Walker, since intermarried with George Parker,.one-third ofhis real estate, during her life, and in the event of her death; all the right bequeathed to her is declared to be vested in his infant son, James Walker. James Walker, the son, claims the right in fee simple, after her death, of the portion of. the estate devised by the testator to his wife. The testator in a subsequent part of his will, bequeathed other parts of his estate in fee to other' persons; and among" them to his said infant son, James Walker. The bill then states the particular estates devised by the will to the complainant himself, and the others of the family of the testatpr; and alleges the same to have been devised to them in fee simple,, free and clear of any right of the widow of the testator, or of his son.
    Ann ’Sophia Parker, who was the wife of the testator, James Walker, and her present husband, George Parker, the bill states, insist upon .the right of the said Ann to one-third of the lots and houses bequeathed by the will; and refuse to. permit the complainant to dispose of the same, and claim a right to exact one-third of the rents thereof, afid to have a right to rent the same as they please.
    The bill proceeds to state, -that the complainant, is advised that Ann Sophia' Parker and her husband, have ho right in the lots held by him under the, will of Janies Walker, nor has any other person a right to them to his prejudice; but should the .Court think differently, the biíl states, that the property cannot be divided without great injury; and that the complainant is desirous to sell.the lots and property devised to him, and those under whom he holds; The. complainant states, that he is desirous to have the exclusive control of his own property; apd that if the said Ann Sophia has-a right of dower in the property, he asks that the same be assigned to her; and that the fights of the minorbe assigned: and if this cannot be done, that the property be sold, and out of the proceeds of the sale, an equivalent be allowed for their interest therein.
    The bill asks, that Ann Sophia Parker, and the infant son of the testator, and his testamentary guardian, be enjoined from setting up any claim to the property held by him, or to which he is entitled, ' under the will of James Walker; and'that he maybe quieted in his possession and enjoyment of the premises. The bill also asks for further and general relief.
    The will of James Walker was made on the 17th day of Sep-, tember, 1833, and admitted to probate on the 35th day of September, in the same year.
    The material parts of the will are the following:
    “ I bequeath and give to my dearly beloved wife, Ann Sophia Walker, one-third of the whole of rriy personal estate, forever, for her own proper use .and benefit; and also oneTthird of all my real estate, during her lifetime; and in the event of her death, all the right in-real property hereby bequeathed to her shall be, and-is hereby declared to be vested in my dear and infant son,' James Walker.
    “ I bequeath and give to my dearly beloved brother, John Walker, forever, all of lot numbered six, in. square one hundred, and six, with the two-story brick house, back building, and all appurtenances thereto belonging.
    “I bequeath and give td my dearly beloved brother, Lewis Walker, forever, lots twenty-three, twenty-four, and twenty-five, in square numbered one- hundred and six, together with a two-story brick building, with a basement-'"story, back building, and all appurtenances thereto belonging, and erected on one or more .of said lots. .
    “I bequeath and give to my dearly beloved brother, Henry. Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected, and appurtenances thereto belonging.
    ■ “ I bequeath and give. to my dearly beloved sister, 'Margaret Peck, lots numbered twenty-one, twenty-two, twenty-six, and twenty-seven, in square numbered one hundred and six, together with, a two-story frame house erected on lot number twenty-seven, as her property forever..

      “ I bequeath and give to my dearly beloved sister, Louisa Ballard, forever, lot numbered. four, in squáre numbered four hundred and thirty-two, together .with the three-story brick house erected thereon, and all the appurtenances thereto belonging.

      “I bequeath and give to my dearly beloved sister, Sarah M‘Cal-lion, part of lot numbered eight, in square numbered seventy-four, together with the frame house erected thereon, as her property forever..
    “I bequeath and give to.my dear and infant son, James Walker, lot numbered twenty-two, in square numbered three hundred and fifty-two, together with two two-story brick houses, and other buildings thereto belonging, as his property forever. I also bequeath ■and give to my infant son, James Walker, forever, the balance of ■jny real estate,.believed to be and to consist in lots' numbered six, eight, and nine; with a house, part brick and part frame, erected on one of said Tots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thirty-three, in square numbered one hundred and forty, and a slaughter-house, erected on one of said lots; lots numbered eight and eleven, in square numbered two hundred and •fifty; and lot numbered twenty-eight, in square numbered one hundred and seven. . And further, I bequeath and give to my infant son, James Walker, one' thousand dollars, to be paid out of my personal estate to, and applied, at the discretion of his guardian, hereinafter appointed, for the education of my son, James Walker. The balance of my personal estate, whatever it may be, I désire shall be equally divided- between my mother, Dorcas Walker, my sister, Sarah M‘Callion, and my brothers, John, Lewis, and Henry Walker.”
    The defendants all answered, (including the minor James Walker, whose answer is put in by George Cover, under a special appointment or him by the Court to answer for said infant,) and substantially admit 'the facts stated in- said bill; but they all, with the exception of Peck and wife, aver that the property cannot be divided without prejudice, and refuse to agree to a sale.
    The case being submitted on bill, answers, and exhibits, the Court dismissed, the bill: from which dismissal this appeal was taken by. tire complainant.-
    The case was argued by Mr. Brent, Jun., and Mr. Key, for the appellant; and by Mr. Bradley, with whom was Mr. Reden,, who submitted a printed argument, for the appellees.
    For the appellant, it was contended:
    1. That the Court has jurisdiction of this case under the circumstances.

      2. That neither the' widow, Ann Sophia, nor the infant, James Walker, has any right, under the will, in the property devised to the complainant.
    3. That even if the Court shall-think the widow has one-third of each specific'lot devised by the testator, yet the infant, James Walker, has under the will no greater estate or interest in the complainant’s property than a life estate; and that the Court, should have so decided.
    4. That, as the bill makes an alternative prayer,'the Court should have ordered partition between these tenants in common, if they are so on a true construction of the will; or a sale, if a partition could not be made.
    Mr. Brent and Mr. JKey contended, that the devise in the wilL of James Walker was oí one-third of third of the réal estate in value ; and this was to be made up out of the residuary estaje. If it can be shown that there is a fund which can be made to ,contribute, it should be brought in. The principle of law is, that where there is .a charge on the- real estate, the residuary estáte is fijst to be taken to satisfy it; and until this is exhausted, the real estate is not chargeable. Cited, 3 Paige’s Chancery Rep! 316. This is a case in which a Court of Chancery will bring in the residuary estate, in order to carry into effect the-several purposes of the testator.
    As to the rights of the infant son of the testator, it was argued, that he took nothing in the property given to the wife, after her death. The words “ forever,” which are used in the bequests to others, are not used in the devise' to him of the property given to his mother. Cited, Russel vs. Milner, 4 Eng. Chan. Rep. 549. 564. 2 Harris, and John.-142. ■ “ All the right” given by the will to his son, is all the right in the real estate given -the widow. ■
    Under the laws of Maryland, the Chancellor may iii such-a case as this, decree a sale.of the property. Act of 1785. ch. 72, sec. 12. Act of 1794, ch. 60, sec. 8. But if the devises of the testator.’s 'will are construed.to give the appellees the estates they claim, the complainant has a right to a partition. A bill for a partition is a matter of right, when a title- ■ is shown in the complainant.' -. Jereniy on Equity-Jurisdiction, 303. Ámb.ler, 236.
    It ought not to -be considered that it was the intention of the testator to give one-third of, all his estate to -his son. It was h .large property, and he meant to give a liberal-portion of it to others of his family.
    For the appellees, it was argued,:
    The widow and infant' son of James Walker contend, that they-are entitled, tinder the first devise in-his will', to one undivided third of the whole of .his real' estates, — the widow, for life, and the son in fee. The complainant, a devisee of part of.his.real estate, denies the right of the widow and son.
    The first difficulty, arises out .of this denial. The proceeding is in chancery, under the acts of assembly of 1785, ch. 72, sec. 12, and 1794, ch. 60, sec; 8." The first act. authorizes the Court, to decree a sale, where an “infant” has a' joint interest or interest in common with any. other person, on its appearing to the Chancellor “that it will be for the interest and advantage both of the infant and of the Other person to sell,” &c. The second act, in the same case, where an infant is -concerned, authorizes a partition. The complainant denies that the infant in this, case has ¿ny estate or interest in the property in controversy.

      But it is 'only where an infant is concerned, that the Cpurt is authorized, by these acts, to decree either partition or sale. Does the complainant make a case for the action of the Court, without admitting that the infant has some estate in the premises ? And may not the decree dismissing the complainant’s bill, be sustained o.n the ground of his own denial of the infant’s right ?
    The 8th sec. of the act of 1786) ch. 45, to direct descents, has no application. It relates to a case of intestacy, and to the common law side of the Court. This is the cáse of a devise, and the proceeding is by bill on the chancery side, of the Court, under the two acts above mentioned.
    The only ground on which an application for a petition can be made, is that it is for the benefit of all the parties. 'This is denied, and no proof was made to sustain this allegation in 'the bill.
    But the widow and son are entitled to one undivided third of the house and lots in this suit under the will. The primary intention of the testator is to provide for his wife and ■ son. With this view, he first carves out of his whole real estate one-third, and gives it, by the first clause of his will, to his wife, for life; “ and in the event of uer death, all the right in real property hereby bequeathed to her, shall be-vested in my infant son.” “ In the event of her death,” means after her., death; and the words “ hereby bequeathed,” refer to the real property, and not to the right or. estate, given to her. “.Right' in real property,” are words large enough to pass* a fee. Nicholls vs. Butcher, IS Yes. 193. 16 East, 221. 6 Cru. Dig. 240. Newkirk vs. Newkirk, 2 Caines’ Rep. 345.
    The testator then goes on, and gives, a. particular house and lot to . the complainant; and the residue of his real estate he gives to his son,- first by a specific devise, and then by a residuary clause.
    The words'of the first devise,- disposing of the-third in his whole-estate, are clear. Effect must be given to every expression in a will, .if possible. Smith- vs. Bell, 6 Peters,’76. Ram. on Wills, 97. Law Lib. No. p. 58.
    It is said that the devise of that third is inconsistent with the devise to the complainant of the house and lots. The cases of inconsistency puf in Cruise (6 Cru. Dig. 164, 408) are, where the whole of an estate' is given to one, and the whole' of the same estate is, by a subsequent clause, given to another. But here the whole of the lots claimed by the complainant is not given, first-to the wife and son, and then to the complainant; one-third only is given by the first devise to the wife and son, leaving two-thirds to pass, by the second devise to the complainant.
    And this was the meaning of the testator. He intended that his wife should take one-third, and the complainant all that wáá left: as if he had. said that the gift in. the second devise shall be subject to the part of the lots he hacf previously given by the first devise. It was not necessary he should say expressly,, in the latter clause, that the gift thereby made was to be subject to the gift made by the former. It is necessarily implied.
    . The objection of inconsistency applies, if at all, as forcibly .to the wife as to the. son. But can it be doubted that she takes one-third of the whole of the real estate under the first clause of the first devise ? And do not the words of the second clause give that third, after her death, to the son, with as much clearness as the preceding words give it to the wife ?
    Does the wife take one-third in the lots.given to the son by the specific devise- in his favour ? How can she, if the complainant’s rule of construction is to prevail? Is there any substantial difference in the words of devise ? To say that the complainant shall take the whole of this house and lot, would be to say, that the wife shall not take one-third of the whole real estate, but-one-third of part only.
    Our construction makes the whole will harmonize, and gives operation to every clause. It makes the first devise dispose of one-third of the premises to the wife and son, and the second, of the remaining two-thirds .to the complainant. Their construction requires.the total rejection and expunging from the will of the clause in" favour of the son. Give, the complainant' the whole of these premises, and there would be nothing upon which that clause could operate. The'son would take-the .lots specifically •devised to him, under the devises in his favour, or as heir at law. Unless.the second clause'of the first devise had been inserted, the third of the premises in controversy, given to the wife for life, would, on her death, have vested in'the complainant.' It could be inserted for no other purpose than to intercept that third, and vest it in the. son. .
    If that clause be a kind of residuary devise, it is so of one-third only; and the subsequent specific devises Would not derogate from it, so long as thete was any thing for those devises to operate on..
    Suppose, then, that the wife and son are entitled to. one undivided third part of the house and. lots in question; were the .Court right in dismissing the bill? The proceeding is under the two acts of ’85 and ’94, which authorize a salé or partition, on the Court’s being satisfied- that it would be for the interest and advantage of the infant and other person to sell, &e. The complainant ought to have proved that fact. In the case of an infant, nothing can be taken for granted. But the answer denies that it would be for the infant’s interest and advantage to have the house and' lots in question divided and sold; which.is responsive to the bill.
    There is no proof that the Court could not therefore be satisfied that it was- for the advantage of the infant' and other party, that there should-be a division or sale, and .could not. so decree.
   Mr.. Justice M‘Lean

delivered the opinion of the Court:

This is an appeal froin the decree of the Circuit Court for the District of Columbia.

The complainant filed his bill, stating that, as devisee of James Walker, he claims the fee in lot numbered six, in square one hundred and six, with all the improvements thereon, in t the city of Washington; and also under a deed- fioraMargaretand James Peck, lots numbered twenty-one and- twenty-two, in the 'same square, which lots wére devised to the said Margaret in the samé will. And that the wife of the devisor, since intermarried with George Parker, claims.under, the will one-third of the above property during hey life, and that at her death it shall go to the son of the deceased named in the will.

And the complainant insists . that he is entitled'to the whole of the property, free from the claims of the wife of the devisor or her son; and he prays that the Gourt may so decree. But if the Court should think that he is only entitled to two-thirds of the .property, then he asks a division of it, or that it may be sold, as shall be deemed proper.

The wife of the devisor and her present husband, and the infant son, by guardian, assert their interest in one-third of the premises in their answers; and are opposed to a sale or division of the property because, among other reasons, it would be prejudicial to the interest of the infant son and devisee of the deceased.

Almost every part of the. will has some bearing on the question raised by the complainant.

■ In his first devise, the testator says, “ I béqueath' and give to my dearly beloved wife, Ann Sophia Walker, one-third of the whole of my personal estate forever, for her own proper usé and benefit; and also one-third of my real estate during herlifetime; and inthe event of her death, all the right in real property hereby bequeathed to her, shall be, and is hereby, declared to be vested in my dear and infant son; James Walker.”

Hé'then gives to his mother, “forever,” a certain lot with its improvements. And then follows the devise to the complainant in these .words: “ I bequeath and give to my dearly beloved brother, John Walker, for ever, all .of lot numbered six,” &c. The devise of the two lots to Margaret Peck is, that they shall -be “ her property forever.”

Several other devises of real property are made in the same form, to His brothers and-sisters; and then he says, “I bequeath and give to my déar infant son, James Walker, lot numbered twenty-two, in square numbered three hundred and fifty-twó,” &c. “ I also bequeath to him forever, the balance of my real estate, believed to be and to consist in lots numbered six, eight and nine, in square one hundred and sixteen, lots thirty-one, thirty-two and thirty-three, in square numbered one hundred and forty; lots numbered eight and eleven in square numbered two hundred and fifty, and lot numbered twenty-eight in square numbered one hundred and seven.”

It is contended by the counsel for the complainants, that the specific devises to the brothers and sisters of the deceased, show his intention to give to them the property devised, clear of all encttmbrance; and that the devise of the real estate to the widow, must be Satisfied out of the residuary devise to' the infant son of the deceased.

The devises are inconsistent with each other, but they are not entirely so. The whole of any specific property is not devised to each of two devisees. The devise of one-third of his real estate to his wife, and at her death to his son, is, to this extent, inconsistent with the specific devises which follow, and which dispose of all his real estate. '

The devise of the “ balance” of his real estate to his infant son, goes on to describe particularly the property.

From Ms first devise to his wife, there can be no doubt that the. testator intended- to give her what the law allowed her to take, And it cannot be supposed that by the subsequent specific- devises, he designed to defeat this arrangement. It is equally clear that he intended, on the death of his wife, that the property devised to her should go to his son.

The construction urged, that “all the right in real property hereby bequeathed to her,” shall go to his son, means a life estate only in one-third of the real property, to -the son, ■ cannot be sustained. The words, “all the right,” fairly import the entire- or perfect right, “ in the real property given to his wife.” This reference to the devise to the wife, is descriptive of the extent of the property to be vested in fee in the son.- The right of his- wife was to terminate at her death, and it would be inconsistent tó suppose that the testator would dispose of the same right, and no more, to his son.

This devise to his wife and son is a leading devise in the will. It was first in the mind of the testator, and must limit and control the other devises. The devises to the son are as specific as tho'se to other persons; and there would seem to be little or no ground for the construction, that the devise to the wife must be satisfied out of the devises to the son. One-third of the entire real estate is. given to the wife, and on her death this third goes-to the son; and in the conclusion of the will certain lots are also specifically devised to the son. The son, in common with the other devisees, takes the lots specifically devised to him, subject to the devise of oné-third to his mother, and at her death he takes this third of these lots; and onéthird of each specific devise in the will.

This construction gives effect to the different devises of the will; and it would, seem to be the only mode by which the intention of the testator can be effectuated. And. it, is in accordance with' that well settled rule in the construction of wills, which regards the in-, terest of-the heir at law.

With the exception of the devises to the wife and son, all the deyises are collateral, and take the property from ff\e line of descent, established by law.

If the complainant can hold the lots claimed by him free from the devise to the wife of the testator, by the same rule every-other devisee in the will must hold in the same manner. And this would defeat the leading devise, for the entire real estate is specifically'disposed of in the will.

Ifthe devise to-the wife he thrown upon the specific devises'to the son, it not only violates the rule which it is claimed. exempts the specific devises from this devise to the • wife 5 but supposes that the testator first devises to his wife and. son one-third of his real estate, and then at the conclusion of' his will .gives specific devises to his son, which are intended wholly as to him to annul the first devise.

This construction would do injustice to the language of the .testator, and defeat his intention.

•Had. the widow taken a life estate under the law,' her interest of one-third would have extended to every part of the real property of her deceased husband. And as the devise is made in as general terms as the statute which gives dower, it must-have the same effect.

This construction of the will defeats the main object of the complainant’s bill. But his counsel insists that the part, devised to the wife should be set off, or the sale' of the property ordered..

The bill does not seem to have been framed with a view to a partition or sale of the estate- Several of the devisees, all of whom are interested in such a proceeding, are not made parties. And a partition or sale is opposed by the infant son and his mother, as injurious to his interest. And the rights of the mother and son are so intimately blended, that any proceeding which shall affect the life estate must affect the inheritance.

A partition or sale of. this, estate is regulated by the statutes of Maryland.

The 12th section of-the act of 1785,-chapter':7£,-provides, that wheré an infant has an interest iii lands, and it shiill -appear to the Chancellor upon application , of any 'of tbe parties Concerned, and upon the appearance of the>infant, that it shall he to' the interest./ and advantage of the infant, to have the land sold; be may order a ° sale.

And in the 8th section of the act of 1794, eh. 60, if is provided, on a similar application and appearance of the infant, as stated in the above statute, for a partition, if the Chancellor, “upon hearing $nd examining ail the circumstances, shall think that it will be for the interest and advantage of all parties concerned;” he may order a-partition.

In this ease there is no evidence which will enable the Court to judge whether a sale or^partition of the property, would be to the advantage of the infant and the other parties. -. And it should hardly be expected that this Court, in the. absence of aB evidence; should decree either of these alternatives against the answer-

The complainant may be subjected to some, inconvenience by holding the property as tenant in common with the devisee of the testator; but it .was a condition imposed by the terms of the will. And this Court, acting under the law of Maryland, cannot remedy this inconvenience; unless the complainant shall bring himself clearly within the provisions and policy Of that law.

The decree of the Circuit Court dismissing the bill is affirmed with costs.


source: Caselaw Access Project

author: Mr. Justice M'Lean

license: Public Domain

text:
    The United States vs. James E. Hardyman.
    The defendant was indicted for receiving treasury notes of the United States, stolen from the • United States mail. The indictment, in one of the counts, described one of the treasury notes as bearing interest annually of one per centum. A treasury note was offered in evidence, bearing interest at one M. per centum; and parol evidence was offered to-show that treasury notes, such as the one offered in evidence,'were received by the officers of the, government as- bearing interest of one mill p?r centum per annum, not one percentum per annum. The Court held that—
    Treasury notes issued by the authority of the act of Congress passed on the 12th of October, 1838, are promissory notes within the meaning of the act of Congress of 3d March, 1825.
    The letter M, which appears on the face of the note offered in evidence, is a material part of the description of the note.
    It would, be proper to receive parol evidence for the purpose of explaining the meaning of the letter M, and proving the practice' and usage of the treasury department and officers of the government and others, lawful receivers of similar treasury notes,; in order to show thereby the meaning intended to be attached, and actually attached, to the letter M by the treasury department and others; and. that by such 'meaning the said treasury note bears one mill per centum interest,- and not one per centum interest.
    When a note is given payable in foreign coin, the,value of each coin in current money must be averred; and under such averment evidence of the value may be received.
    ON-a certificate of division in opinion from the Circuit Court of the United States for the eastern district of Virginia.
    James E. Hardyman was indicted in the Circuit Court of the eastern district of Virginia, for buying, receiving, and concealing treasury notes of the United States, knowing them to have been stolen. The treasury notes were alleged to have been-stolen from the mail of the United States by Winston, a negro man, or by persons unknown. Winstoiu-was at the same time indicted for robbing the mail of the United States, of ten treasury notes. The indictment contained four counts, charging the defendant with receiving treasury notes, bearing interest at one per centum, and at five per centum per annum;
    The defendant moved the Court to quash the indictment, upon the ground that the papers described in the said indictment are not promissory notes under the act of Congress approved on the 3d day of March,' 1825, under which the prisoner is indicted; and the act of Congress, approved the 42th day of October, 1837, by virtue of which the said notes were issued, describes them as treasury notes, and does not provide, nor does any’Other'act of Congress provide any penalty for stealing these notes from the mail of the United States, or receiving them, knowing them to be stolen; and upon this motion the Court being divided in opinion, the said indictment was not quashed.
    The Attorney for the United States, further proceeding in the case, offered as evidence to the jury, a treasury note for fifty dollars, payablé in one year, bearing interest at the rate of one M. per centum.
    The counsel for the accused, moved the Court to exclude it from the jury as evidence, upon the ground that itflóes not answer the description of any one of the notes set forth in the indictment, as it bears interest after the rate neither of five per-centum nor of one per centum) but bears an interest after the rate of one mill per centum, as signified by the letter “M” after the word “one” upon the face of the .said note: and to sustain tnis motion, the defendant proved, by the . collector of the port of Richmond, that he receivé'd notes such as that above described, as notes bearing interest after the rate - of one mill per centum, and not one per centum,-and. fhe government so received them from him; and the'letter M. aforesaid was understood to signify and be/intended to mean mill: and also proved that the Secretary of the Treasury had issued, as far as -the said collector,' and another witness who derived his impression from the Treasurer of the -United States, and the officers of the government, knew and believed, no treasury note bearing interest after the rate of. one per centum. Upon this motion the Court was also divided in opinion, not being satisfied that thé nóte did appear by its face to bear inv terest after the rate of one mill, and not being satisfied that it was. competent to the defendant by parol- evidence .to explain a.ny word or letter upon the face of the skid n'ote, so as to show what its meaning was, either by resort to any definition of it, or to the exposition of it by the practice of the treasury department, and the officers of' the government, and the public; and, therefore, that it was not competent to the defendant so; to explain the letter M aforesaid, which appears on the face of the said note, and of which no noticé is taken in- the indictment, for the purpose^ of showing that by that, letter the makers of the said note intended to fix the rate of interesj; at one mill per centum. And thereupon, upon the motion of the accused, and with the consent Of the Attorney for the United States, the Court adjourned to the Supreme Court of the United ¡States for its decision, the following-questions, viz.:—
    . 1.' Are the treasury notes 'issued by authority óf the. act of Con-gross passed on the 12th day óf October, in the year 1S3S, promissory notes within' the meaning of the act of Congress, approved on' the 3d day of March, 1825, under-which the prisoner is indicted’; and is. theré a sufficient averment in the indictment in this cause of the stealing and. receiving of such treasury notes ? .
    2. Is the letter “ M,” which appears upon the face of the note¡ offered as evidence, a material part of'the description of the note ?
    3. Would it be proper to receive parol, evidence for the purpose of explaining the meaning of the said letter M, and proving the practice and usage- of the treasury department and officers of the government and others, lawful receivers of similar- treasury notes, in order to-show thereby the meaning intended to be attached, and actually .attached to the said letter M by the treasury department and others; and that by such meaning the said treasury note bears one mill per centum interest; and not one per centum interest ?
    The case was Submitted to the Court by Mr. Grundy, Attorney ■ General of the United States.
   Mr. Justice M'Lean

delivered the opinion of the Court:—

This case comes before this Court on a certificate of division of opinion of the judges of the Circuit Court, for the eastern district of Virginia.

The defendant was indicted under the 45th section of the post-office law, for buying, receiving, and concealing certain promissory notes called treasury notes, which he knew had been stolen from the mail, of the United -States. And, among others, one of the notes was described in the indictment, “as a promissory note called-.a treasury note, for the. payment of fifty dollars, with intéresf at. the rate of one per centum,” &c.

On the production of the note in evidence, it was found to be accurately described iñ the indictment in all parts which were attempted to be described, except on the face of the note; instead of the above words of “ with interest at the rate of one per centum,” &c., the words were, “ with interest at the rate of one M per centum.”

And the counsel for the defendant moved the Court to exclude the nóte from the jury, for the variance; and to, sustain this motion, the defendant proved, by.the collector of the customs at Richmond, that'he received notes, such as- the one described, as notes bearing interest after the rate of one mill per centum, and not one per centum;, and that, the government so received them from him. And the judges being divided on this motion, as also on a motion to quash the indictment, on the ground that the notes set forth, in the indictment were not- promissory notes, within the act of Congress, the following points were certified for the decision of this Court. -

1. Are the treasury notes issued by authority of the act of Congress passed on the 12th day of October, in the year 1838; promissory notes within the meaning of the act of Congress, approved on the 3d day of March, 1825, under which the prisoner is indicted; and is, there a sufficient averment in the indictment in'this cause, of the stealing and receiving such treasury notes.

2. Is the letter “M,” which appears upon the face of the note offered as evidence, a material part of the description of the said note ?

3.. Would it be proper to receive, paról evidence, for the purpose of explaining the meaning of the said letter “ M,” and proving the practice and usage of the treasury department and officers of the government and others, lawful receivers of similar treasury notes, in order to show thereby the meaning intended to be attached, -and actually attached, to the said letter M by the treasury'department and others; and that by such meaning the said treasury note. bears one . mill per centum'interest, and. not one per centum interest.

As to the first'point, we entertain no doubt that the notes.described in the. indictment, áré promissory notes within the act of Congress under which the • indictment is framed. They contain a promise to pay money by the United States, and they are substantially arid technically embraced b.y the, law. ■ And -we think the averment, though not very technically expressed in the indictment, that the defendant received'the notes, knowing them to have been stolen from the mail, is sufficient..

We think also, that' the letter M, which appears on the face of the note, is a material part of it. It. limits the interest on the note to One mill per -centum, instead of one per centum, as stated in the indictmént.

The indictment does not profess to set out an exact' recital of the note,'but merely to give such.a description of it,'as to make it evidence in the case. And this is all that the law requires. But ffie description, as far as. it'goes, must be accurate, so as to . identify the note. Any substantial variance between- the note described, and the one offered in evidence, must be fatal to the prosecution. In this respect the rules of pleading are the same in criminal as in civil proceedings,

If thénote in question had been given by an individual* and art action of assumpsit'had been brought on it, die declaration, must have described it -accurately ; and by-a proper' averment shown the meaning and effect of the letter M, on the face of the note. And so where a note is given payable in foreign coin, the value of such coin, in current money, must be, averred; and under such averment, evidence, of the value may be received. .

This treasury note might,, perhaps, hawe been described in the indictment with sufficient certainty, without stating the rate of interest which it bears; but if this part of the note be described, it must be done accurately. And this might have been done by copying the words of the note, including the letter M. It would not have been improper, though not essential, áfter the recital, to aver the meaning and effect of the letter M; arid then proof would be required to sustain the averment.

We think, under the circumstances of the case, that parol proof maybe received to show the meaning.and effect of the letter M, as inserted in the body of the note; and if such evidence shall'esta-; blish a substantial variance between the- note described in the indictment and ;the one offered iri evidence, it must be fatal- to the prosecution, whether such evidence be. submitted to the decision of the Court ór to the jury, under the instruction of the Court.

This causé came on to be heard, on the transcript of the record from the Circuit Court of the United States for the eastern district of Virginia,' and on the. points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified' to this Court fpr its opinion, agreéably to the act of Congress in such case made and provided, and, was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st.- That the treasury notes isshed by authority of the act of Congress, passed on the twelfth day of October, in the year 1838, are promissory notes, within the meaning of the act of Congress approved the third .day. of Mareh* 1825* under which the prisoner is indicted; and that there is a sufficient averment in the indictment in this cause of the stealing'and receiving such treasury notes. 2d. That the letter “ M,” which appears upon the face of the note offered as evidence, is a material part of the description of said note. And, 3d. That it would be proper to réceive parol evidence for the purpose of explaining the meaning of the said letter M, and proving the practice and usage of the treasury department 'and officers of the. government and' others, lawful receivers of similar treasury-notes ; in order to show thereby the meaning intended to be attached and actually attached to the said letter M by-the treasury department and others, and that by such meaning the said treasury note .bears one mill per centum interest, and not one per centum interest..


author: Mr- Justice Barbour

text:
    William B. Stokes, Plaintiff in Error, vs. Francis W. Saltonstall, Defendant in Error.
    In an action against the owner of a stage coach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting of the coach, the owner- is not liable, unless the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the" carriage, in which he and his wife were ' passengers: and. the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was carelessness, or negligence, or want of skill on the part of the driver; and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.
    It being admitted that the carriage was upset and the plaintiff’s wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified, and suitably prepared for the business in which he • was engaged; and that he acted on this occasion with reasonable-skill, and with the utmost prudence and caution: and if the disaster in question was occasioned by the least negligence, or want of skill, or prudence on his- part, then the defendant is liable in the action.
    If there was no want of proper skill, or care, or caution on the part of the driver of a stage coach, and the stage -was upset by the act of the plaintiff or his wife, in rashly and improperly springing from it, then the defendant is'not liablfe to an action: but if the want'of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage-to upset; and although they may also find that the plaintiff and his wife would probably have-sustained little or no injury if they had remained in the stage.
    If the driver whs St person of competent skill, and in every respect qualified and suitably prepared for-the business iS which he was'engaged, and the accident was occasioned by' no fault .or -want of skill or .pare on his part, or that of the defendant or'his agents, but by physical disability prising from extreme and unusual cold, which rendered him inca-' pable for the time t$ do his duty ;■ then the owner of the stage is not liable in -an action for damages, for an injury sustained by a person who was a passenger.
    IN error to the Circuit Court of the United States for the district of Maryland.
    The defendant in error, Francis W. Saltonstall, in September,1836, instituted an action for the recovery of damages against Richard C. Stockton and William B. Stokes, owners of a line of stages for carrying passengers-from Baltimore to Wheeling; Mr. Saltonstall ■ and his wife having on the 6th day' of December, 1836, been passengers in the stage, when, by the carelessness, unskilfulness, and default of the driver, the stage,was upset; by reason of which Mrs. Saltonstall had her hip fractured, and several other bones of her body broken, and was otherwise greatly cut, bruised, and iniured, so that her life ivas endangered^
    By an agreement between the counsel for the plaintiff and the defendant’s no objection was to be taken to the nonjoinder of other persons as defendants, who were also owners or interested in the line of stages, when the injury complained of in the action occurred; and the plaintiff. might recover in this-section, any damages which hnight be recovered in an action by himself and wife, or by himself alone.
    Richard C. Stockton having died after the institution of the suit, it was proceeded in against William B. Stokes, who survived him.
    The. cause was tried-before a jury, and a verdict was given for the plaintiff, under the instructions'of the Court, for seven thousand dollars. .On this, verdict the Court gave a judgment for the plaintiff.
    The counsel for the defendant tendered a bill of exceptions to the opinion of the Court; and he afterwards prosecuted this writ of error.
    . The bill of exceptions stated, at large, the evidence given on the trial of the cause.
    The evidence of the witnesses for the plaintiff, taken under a commissiori to New.Orleans, and examined on the trial, s'tated, that at the last change of horses, before the accident, the passengers generally remarked that the driver seemed to have drank too much to go on. • Mr. Saltonstall, the' plaintiff, went to the agent, or the person avowmghimself as such, and who was acting in that capacity, and reported to him the observation made by the passengers; the agent replied that the driver was all straight, and that the appearance of his being intoxicated was entirely owing to hishaving driven during the night previous, which had been excessively cold. When the stage arrived at about two miles from Bevansville, the passengers felt the stage strike against a mound< or ridge on the right side of the road. Mr.,Saltonstall on observing this, immediately jumped out, as was believed, with the intention of stopping the horses; Mrs. Saltonstall attempted to. follow her hu§band, but fell to the ground at the very instant the stage ups.et, and- it fell directly on her. The upset took place on Sunday afternoon, the 5th day of December, at about four o’clock in the afternoon. It was broad daylight. -The plaintiff’s wife was dreadfully injured; she .was taken upand carried to a log-house in. the neighbourhood. The iiijury was occasioned by thelalling of the stage on her body.
    A witness stated that, the road was perfectly level, and in good travelling order. There had been ice, but it had been so beaten dbwn that there was only a little remaining on the sides of the road. The* centre was free from it. The road was not. considered dangerous or difficult. The driver was believed to be intoxicated,' and his intoxication was increased by his drinking with a man on the seat along side of him.' This beliefwas produced by his reckless and irregular manner óf driving, which called for repeated remonstrances from the passengers, and which were wholly unattended to; and for his apparent stupid and drunken manner of conduct after the upset. He was totally unfit for any thing; he could not, or would not answer a question, nor. afford the least possible assistance.
    ,The. injuries sustained by Mrs. Salstonstall were proved by the surgeons and medical attendants, and they were such as to make it impossible; or too dangerous to attempt to move her from the log hut, from fire time of the accident, the sixth day of December,-until the eighteenth day. of December, when she was carried to Bevans* ville, where she - remained until the eighteenth day of May following. In July of the same year, she was in Philadelphia, still in a state of great suffering, and using crutches.
    The plaintiff also, proved, by Mr. Ludlow, who was a passenger m a stage which arrived after.the accident, that the road was perfectly good, and was one on which a stage would not be likely to upset. The witness went to the driver, and had some, conversation with him'. The defendant’s counsel objected to. the statements of the driver being admitted in evidence; but the Cóurt declared them to be admissibleto which the counsel for the defendant excepted. The plaintiff then further proved by Mr. Ludlow, that he asked the driver how the accident happened,' when he stated he had upset fifty coaches, and he did not believe the woman rwas as much hurt as she said she was.
    The testimony offered by the defendant, was intended to show the capacity and sobriety of the driver, and that the road was icy, difficult, and dangerous; and that the upsetting of the stage might be accounted for by the slippery and icy condition of the road. The evidence for the defendants, it was contended, proved, that had the wife of the plaintiff remained in the stage, lio injury would have resulted to her. 'the other passengers were not materially bruised. ■ The defendant also proved, that the coach and harness were properly made, and of sufficient strength; .and that the horses were good and steady.
    The defendant’s counsel prayed the Court to .instruct the jury in sixteen different, prayers. ' Amoilg those were the 'folio wing:
    ,1. If the jury shall believe from the evidence.in the cause, that the injury to the. plaintiff.’^ wife was occasioned solely by the overturning of the coach, ánd by its falling . upon her; and that such overturning was occasioned by the. act of the plaintiff and his wife, or either of them, in leaping from, or otherwise in leaving the said coach; and shall further believe, from the evidence in the cause, that at. the time of such leaping from, or of such leaving said coach, there did not exist any. certain peril, nor any immediate danger of personal injriry, nor any reasonable cause of apprehension of impending danger by remaining in the coach; then the plaintiff is not. entitled to recover upon the issue joined in this case, in respect to the- said injury sustained by his wife; even if they •'also believe from the evidence in the, cause, that the driver, was 'guilty of carelessness, negligence, and misconduct, in placing the coach in the particular place and situation in which it was at the time of such leaping from, or leaving the coach.
    . 2. If the jury shall believe from the evidence in the cause, that the injury to the plaintiff’s wife was occasioned solely by the overturning of- the coach, and its falling upon her; and that such overturning was occasioned by the act of the plaintiff and his wife, or either of them, in leaping from, or otherwise in leaving the coach, and shall further believe from the evidence in the cause, that such leaping from, or such leaving the coach, was not under the actual circumstances an act of prudent precaution for the purpose of self-preservation ; nor such an act as a person of ordinary care, pru-> deuce, or resolution would, have adopted, under the actual circumstances, even if they shall believe- from the evidence, that such leaping from, or such leaving said coach, Avas under .the existence and incitement of actual alarm and apprehension of. supposed impending danger; then the plaintiff is not entitled' to recover upon the issue joined in this cause, in respect of said injury sustained by ■ his said Avife.
    3. If the jury shall believe from the evidence-in the-cause, that the injury sustained by the plaintiff’s -wife was occasioned solely by the overturning of the coach, and by its falling upon her; and that such overturning was occasioned by the act of the plaintiff arid his said Avife, or by the act of either of them, in leaping from, or otherAvise in leaving said coach; and shall further believe, from the evidence in the cause, that such leaping from, or leaving of said coach was not effected Avith proper caution and prudence, under the actual- circumstances, as well.in reference to the situation, in which the said plaintiff and his Avife, (if the overturning Avas occasioned by the act of both,) were placed; or, if such overturning was occasioned only by the act of one, in reference to the situation of such one of them, by Avhom such overturning was occasioned, was placed; as also in reference to the situation in which said coach was placed in position, with respect to the ground on which it stood, and otherwise, then the plaintiff is not entitled to recover, in respect to said injury to his said wife.
    4. If the -jury shall believe from the evidence in the cause, that the injury to the plaintiff’s Avife was occasioned solely by the falling of the coach upon, her, and that she Avas then outside of the coach and on the ground; and shall further believe, that at the time she leapt from, or left the coach, she knew, or believed, that it was ■overturning,- or about to overturn, and leapt from, or left it for that cause, and that she designedly alighted bn the ground in the direction in Avhich the coach Avas overturning, or about to overturn; that then, such her a.ct was a rash and imprudent act, and the defendant is not responsible upon the issue.joined in this cause for the injury which she' so sustained; even if the jury shall, at the same time, believe that such overturning was occasioned by the fault or negligence of the driver.
    5. If the jury shall find, from the evidence, that the plaintiff’s "wife, if she had remained in the coach, would not have been materially injured by the overturning of the same; and shall nnd from all the evidence in the cause, that a discreet and prudent person, under the circumstances in which she was placed, as disclosed in evidence, would have', and ought to have, remained in the coach; and that she placed herself imprudently, and indiscreetly, and rashly in the way of incurring the actual injury which she sustained, that then the defendant is not liable, upon the issue joined in this case, to answer in damages for such injury.
    6. If the jury shall believe from the evidence in the cause, that the plaintiff and his wife, or either of them, by leaping from the coach, or leaving the same, contributed in fact, to produce the happening of the injury to the plaintiff’s wife, which she actually sustained;. and shall further believe, that in so leaping from, or leaving the said coach, the same was done unnecessarily and indiscreetly, or imprudently, or rashly, incautiously, or without ordinary care, that then the plaintiff is not entitled to recover in respect of said injury: even if the jury shall believe that the driver was guilty of gross negligence and misconduct; and was partly, or even mainly, the cause-of the happening of such injury..
    16. That the prima facie evidence-of negligence arising from the fact of the upsetting of the coach, and the injury to the plaintiff’s wife, is rebutted by the proof of the fact, if the jury so believe from the evidence, that the defendants had a first-rate coach, a competent set of .horses, and good and proper harness, and a competent, prudent, and careful driver at the time of the accident; and that then the burden of proving negligence is thrown upon the plaintiff.
    The plaintiff also offered prayers to the Court for instructions to the jury.
    All the prayers offered by the-defendant and the plaintiff were rejected by the Court, and the Court instructed the jury :
    1. That the defendant is not liable in this action unless the jury find that the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage, in which he and his wife were passengers: and the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was carelessness, or negligence, or want of skill, on the part-of the driver; and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.
    2. It being admitted that the carriage was upset and the plaintiff’s wife injured, it was incumbent on the defendant to prove that the driver -was a person of competent skill, of good habits, and in every respect' qualified and suitably prepared for the'business in which he was engaged: and that he acted on this occasion with reasonable skill, and with the utmost prudence and caution; and -if • the disaster in question was occasioned by the least negligence, or want of skill, or prudencé on his part, then the defendant is liable in this action.'
    3. If the jury find there was no want of proper skill, or care, or caution on the part of the driver, and that the stage was upset by the act of the plaintiff or his wife, in rashly and improperly springing from it, then the defendant is not liable to this action; but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that , the stage would upset, or that the driver was incapapable of managing his horses, the plaintiff is entitled to recover; although-the jury may believe, from the position In which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or' even caused the stage to upset; and although they may also find that the plaintiff arid his wife would probably have sustained little or no injury if théy had remained in the stage.
    4. If the jury shall find that the driverjvas a person of competent skill, and in every respect qualified and suitably prepared for the. business in which he was engaged, and .that the accident was occasioned by no fault, or want of skill or care on his part, or that of the defendant or his agents, but by physical disability, arising from extreme and unusual cold, which rendered him incapable for the-time to do his duty; then the defendant is not liable in ,this action.
    ■ The defendant excepted to the refusal of the prayers offered by him, and to the instructions given by the Court to the Jury.
    The case was submitted to the Court, in printed and written arguments, by Mr. Schléy, for the plaintiff hi error; and by Mr. Johnson, for the defendant.
    Mr. Schley, for the plaintiff,'
    submitted to the Court the following points and authorities
    .When Mr. Ludlow was under examination, he stated that, shortly after the accident happened, he went up to the driver and had some conversation with him. The defendant, by his counsel, objected to the admission in evidence of the statements of the driver: the Court Overruled the objection, and the defendant excepted: .The plaintiff then .proved, by Mr. Ludlow, “ that he asked the driver how the accident happened, when he stated that he had upset fifty coaches, and he did not believe the woman was as much hurt'as she said she was.” - This conversation, it will be observed, took'place after the accident had occurred. If it can be considered as the driver’s account of the manner in which the accident occurred, it is still but his representation of a past occurrence, and he ought to have been called as a witness - to testify. Rut the statements were not even made in reference.to bis conduct in the particular transaction, but in relation-to what he.had donjon former occasions; and when, for aught that appears, he was not in the service of the defendant. ■ If the fact had been established, by competent testimony, that this driver bad upset fifty coaches, it would havé been pregnam evidence, before the jury, of his want of skill as a driver; and if his- statement to Mr. Ludlow was admissible evidence to establish this fact, it tended strongly to prove his- want of competent skill. The position assumed by the appellant, is, that the declaration of the driver to the witness, “ that he had upset fifty coaches,” was not admissible and competent evidence for any purpose whatever.

      The defendant’s first' 'prayer is based on the hypothesis that the jury would find, from the evidence, that the immediate and proximate cause of the overturning of the coach was the act of the plaintiff or his wife, or both, in leaping from or leaving the coach; and that, at the time of leaping from or leaving said coach, there did not exist any certain peril, nor any immediate danger, nor any reasonable apprehension of impending danger by remaining in the coach.
    This prayer was framed with reference to the instruction of Lord Ellenborough, in Jopes vs. Boyce, 1 Starkie’s Rep. 393, 2 English Com. Law Rep. 482 ;.and the language of the prayer was adopted from the language of his Lordship. It concedes that the defendant is liable for the negligence, of the driver. It. further concedes that even if the proximate cause of the injury was the act of the plaintiff or his wife, or both, the defendant was still liable, if there was want of skill, or if there was negligence or misconduct oñ the part of the driver; provided that such want of skill, or negligence, or misconduct of the driver, produced a state of case which placed the plaintiff and his wife, or either of them, in a situation of certain peril or, immediate danger, or as was sufficient to create a reasonable apprehension of impending danger. But the prayer assumes-the law to be that, in case the act of the party injured was thé proximate cause of the injury, the defendant is not liable merely because there- was default on the part of his driver, unless that default conduced to produce the injury; that is, unless there was a natural and reasonable connexion between the default of the driver, as-the cause, and the injury; as the consequence ; and that natural and reasonable connexion is assumed to-be such as Lord Ellenborough has defined in the case above cited.' In Story’s Commentaries on the Law of Bailments, 377, the learned commentator, citing the case from Starkie, says ; “ And the liability of the coach pro= prietors will be the same, although the injury to the passenger is caused by his own act, as by leaping from the coach, if .there is real danger, and it arises from the careless conduct of the driver.”
    The 2d, 3d, 4th, and 5th prayers were all framed with reference to the language of the instruction in the case of Jones vs. Boyce. It-will be observed that the several prayers were not intended to deny, in toto, the plaintiff’s right of action; but were limited to the particular injury incurred by the plaintiff’s wife, by reason of the imprudence, carelessness, unreasonable alarm, or rashness of' the plaintiff or his wife; imputed- by the hypothesis of each respective prayer.
    On the subject of reasonable apprehension oL impending danger, some analogy may be found in the chapter “-On Cruelty,” in Paynter on Marriage and Divorce; and in the quotations from distinguished writers on the civil law, which will be found in the notes to that chapter.
    The 6th prayer asserts, as a proposition of law, that if the plaintiff or his. wife, or either .of them, contributed, in fact, to prodiice the injury, by leaping from the coach unnecessarily or rashly, incautiously or without ordinary care, that then the plaintiff is not entitled to recover in respect of said injury. The position is, that in case of mixed fault, the action will not lie; that the law will not speculate whether the fault of the defendant alone, without the concurrence of the fault of the plaintiff, would or would not have resulted in injury to the plaintiff; but that it is an answer to the action, in respect of any injury sustained, if it appears that the plaintiff aided in producing such injury. He must be himself .blameless, before he can impute blame to another.
    In cases of collision, it has been frequently so adjudged. Butter-field vs. Forrester, 11 East, 60. Flower vs. Adam, 2 Taunton, 314. Pluckwell vs. Wilson, 5 Carr, and Payne, 375. Luxford vs. Large, 5 Carr, and Payne, 421. Williams vs. Holland, 6 Carr, and Payne, 23. Turley, vs. Thomas, 8 Carr, and Payne, 104. Woolf vs. Beard, 8 Carr, and Payne, 373. Bridge vs. the Grand Junction Railway Co., 3 Meeson and Welsby, 244. Vanderplank vs. Miller, Moo. and M., 169. Harlow vs. Hammiston, 6 Cow. 191. Smith vs. Smith, 2 Pick. 621. Lane vs. Crumbie, 12 Pick. 177.
    Now, this case, it is true, was not a case of collision. But in the cases cited, the gist of the action was negligence, and so it is in this. The case of Jones vs. Boyce was a case of a coach proprietor. It is true that the passenger carrier is bound “ for the utmost care and diligence of very cautious persons.” Story’s Law of Bailments, 379. But if an injury is produced by the concurrent fault of both parties, by what legal alchymy can we analyse the result, for the purpose of discovering, how much of the injury was produced by the fault of the defendant or his agent, and how much by the fault of the plaintiff; or whether, in fact, the injury would have resulted at all, but for the fault of the plaintiff? The defendant is liable, in damages, for the consequences of the driver’s negligence or want of skill; but unless the effect can be apportioned, he may be made liable for what was really a consequence of the plaintiff’s own fault: and how can it be apportioned? In the case of Hill vs. Waner, 2 Starkie’s Rep. 377, 3 Eng. Com. Law Rep. 390, where there was negligence in the agents of both parties in taking down a party wall, it was ruled that “ it was not competent to the plaintiff to attach that blame to the defendant which was the common blame of both.”
    The 16th prayer assumes that it is incumbent on the plaintiff to prove negligence. It concedes that proof of the facts of the overturning of the coach and the injury are prima facie evidence of negligence, and throws upon the defendant the onus of proving, not that the accident was not occasioned by the driver’s fault, as ruled by the-Court in their final instructions, but that the coachman was a person of competent skill in his business, that the Coach was properly made, the horses steady, &c. — Story’s Law of Bailments, 375, and the cases there cited. The injury may have been the result of inevitable accident, arising from the state of the road, or from the physical inability of the driver, caused by extreme and unusual cold; or it may have been occasioned by the fault of the plaintiff, or by the fault of the driver, or by mixed fault. The plaintiff, it is insisted, is bound to prove negligence, however slight, in order to maintain the action. Now,if the event itself is to be evidence of negligence, itwouldbe right to vary the rule, and say that the defendant was bound to prove that there was no-negligence. In the cases cited in the Court below, the breaking down resulted from some supposed negligence in preparation ; but when it is satisfactorily shown that the driver is a person of competent skill, that the horses and coach, &c., were properly provided, it is shown that there was no want of due preparation for the journey. If, ip travelling on a level road, a wheel comes off, or an- axletree snaps, it is strong prima facie evidence of negligence in preparation; but mere proof of.the breaking down, without showing the proximate cause of the breaking down, (as the coming off of the wheel, or the snapping of the axletree,) is not prima facie evidence of negligence. In our case, the mere overturning is ruled to be evidence of negligence, but the proximate cause of the overturning is not established. It was an open question upon the evidence. Upon this distinction, it is conceived that the instruction is not warranted by the cases; and that the burden of showing “ that the accident was not occasioned by the drivers fault,” was improperly thrown upon the defendant; and that it was,' at least, rebutted by tlie hypothesis assumed in the 16th prayer. — Vide Lane vs. Crombie, 12 Pick. 177, and the cases cited, per curiam.
    Mr. Johnson for the defendant.
    The exce-'tion to the statement of the answer of the driver to Mr. Ludlow, was made before the evidence was given. The exception should have pointed out-the part of the evidence which was objectionable, and not having done this it must be overruled. This is a familiar rule. But the. evidence was proper. It cannot be denied that the reckless and heartless declarations of the driver to Mr. Ludlow, with his other conduct, as proved by other witnesses; made while Mrs. Saltonstall was suffering the most severe agony, were proper testimony to go to the jury in aggravation of the damages.
    The following propositions are sustained by authorities.
    •1. For the sufficiency of the stage coach with reference to defects visible, or not visible, under ordinary examination, the carrier is responsible. 1 Carrington and Payne, 414. Sharp vs. Grey, 9 Bingh. 457.
    2. The breaking down, and consequently the upsetting of the stage coach, unexplained, is prima facie evidence of negligence. Christie vs. Griggs, 2 Campbell, 79.
    . 3. When there is danger in any particular part of the route, it is ffie duty of the driver of the stage to state its full extent to the passengers. Dudley vs. Smith, 1 Campbell, 167.
    4. If a passenger is, by the negligence or want of skill of the driver, or- by the insufficiency; of the carriage, in such a state of peril as to render an eirort to escape, from it, an act of prudence, and if in escaping he is injured, the-owner of the stage is responsible, Jones vs. Boyse, 1 Stark: Rep. 393.
   Mr- Justice Barbour

delivered the opinion of the Court.

This is a writ of error to a judgment of the Circuit Court of the United States for the fourth circuit, and district óf Maryland.

It was an action on thd, case, brought by the defendant in error, against the plaintiff in error,.arid Richard C. Stockton, to recover damages for an injury sustained by his wife, by the upsetting of a stage coach in which she was a passenger, and of which said Stockton and Stokes were the proprietors. The suit was brought in the name of Saltonstall alone; but there is in the record an agreement signed'by the counsel of the parties, stipulating, amongst other things, that the plaintiff might recover in it, any damages which might be recovered in an action by himself and wife, or by, himself alone.

The declaration alleges that the injury complained of, was caused-by the negligence and want of skill of the driver, then in the employment of the said Stockton and Stokes, and engaged in driving their coach, in which the plaintiff’s wife was a passenger at the time she received the injury. In the progress of the case, Stockton, one of the defendants, died, and his. death having been suggested upon the record, the case proceeded against Stokes. He pleaded the general issue of “ not guilty,” on which issue was joined.

At the trial, the defendant took a bill of exceptions to the ruling of the Court; from-which it appears, that he asked the Court to give to the jury sixteen several' instructions, and the plaintiff asked of the Court two instructions; all of which, as well thos,e asked by the defendant, ás by'the plaintiff, the Court refused. But the Cofirt did give the jury the four following instructions, to wit :

1. That the defendant is not liable in this action unless the jury find that the injury of which the -plaintiff complains was occasioned by the negligence or want of proper skill or care in the driyer of the carriage, in which he and his wife were” passengers: and the facts that the carriage was upset, and the plaintiff’s wife injured, are prima facie evidence that there was carelessness, or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.

2. It being admitted that the carriage was upset,- and the plaintiff’s wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified, and suitably prepared for the business in which he was engaged; and that he acted on this occasion with reasonable skill, and with the utmost prudence and caution; and if the disaster in question was occasioned by the least negligence, or want of skill, or prudence on his part, then the defendant is liable in this action.

3. If the jury find there was no Want of proper kiD, or care, or caution on the part of the driver, and that the stage was upset by the act of the plaintiff or his Wife, in rashly and improperly springing from it, then tlie defendant is not liable to this action: but if the want of proper skill or care of the driver placed the passengers in a state of peril, and they had at- that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape, may have increased the peril, or even caused the stage to, upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no in•jury if they had remained in the stage.

4. If the jury shall find that the driver was a person of competent skill, and in every respect qualified and suitably prepared for the business in which-he was engaged,-and that the accident was occasioned -by no fault or want of skill or care, on his part, or that of the defendant or his agents, but. by physical disability arising from extreme and piusual cold, which rendered him incapable for the time to do his duty; then the defendant is not liable in this action.

Under these instructions, the plaintiff obtained a verdict for seven thousand one'hundred and thirty dollars, for which the Court rendered a judgment In his favour; and from that judgment this writ of error is taken.

. We consider it altogether unnecessary to notice any of the instructions asked for by the defendant, and which the. Court refused to •give, because th.ose which they did give cover the whole ground; and therefore, it depends upon their correctness whether the judgment is to be; affirmed, or hot.

We think that the Court laid down the law correctly in each and all of these instructions. It is certainly a sound principle that a contract to carry passengers differs from a contract to carry goods. For the goods, the carrier is answerable, at all events, except the act of God, and the public enemy. But although he does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to,them,"go to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that as far as- human care and foresight can go, he will transport- them safely. ■ The principle is in substance thus laid down in the case; of Christie vs. Griggs, 2 Campbell, 79.

So it is also in the case of Aston vs. Heaven, 2 Espinasse’s Rep. 533, where it is said, that coach owners are not liable for injuries happening to passengers, from accident, or misfortune, where there has been no negligence, or default in the driver; that the action stands on the ground of negligence, but that a driver is answerable for the smallest negligence.

The principle is thus laid-down in 2 Kent’s Commentaries, 466 : The proprietors of a stage coach, do not warrant the safety qf passengers in the character of common carriers; and they are not responsible for mere accidents to the persons .of the passengers, but only for the want of due care.” W-hat. the author understood to be due care, will appear from this consideration, that in support of his proposition, hepefers to the two.cases which we nave just cited.

In Story on Bailments, many cases áre collected tógethér upon this ‘subject, in pages 376-7, as 'illustrative' of the principle, which is by that author laid- down in these, words: “ If he (that is, the driver) is guilty of any rashness, negligence, Or misconduct, or is unskilful, or deviates from the acknowledged custom of the road, the proprietors will be responsible for any injuries resulting from bis acts. Thus, if the driver drives with reins so loose that he canhót govern his horses, the proprietors of the coach will be answerable. So if there is danger in a part of the road, or in a particular passage, and he omits to give due warning to the passengers. So, if he- takes the wrong side of the road, and an accident. happens from want of proper room. So if, by any incaution, he comes in collision'with another carriage.” To which we Will add the further example: wherever there is rapid driving, which, under the circumstances of the case, amounts to rashness. In short, says the author, he must in all cases exercise a-sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties; and if he omits it, his principals are liable. .

The only case which is recollected to have come before this Court on this subject, is that of Boyce vs. Anderson, 2 Peters, 150. That was an action brought by the owner of slaves, against the proprietor of a steamboat, on the Mississippi, to recover damages for the joss of the slaves, alleged to have .been caused by the negligence or mismanagement of the captain and commandant of the boat The Court distinguished slaves, being human- beings, from goods; and held, that the.doctrine as to the liability.of common carriers for mere goods, did not apply to them, but that in respect of them, the carrier was liable only for ordinary neglect. The Court seem to have considered that case as being a sort -of intermediate one between goods and passengers. We think, therefore, that any thing said in that case, in .the reasoning of the Court, must be confined.in its ap- ■ plication to that case; and does not affect the principle which we have before laid down. That principle, in our opinion, fully justifies the first and second instructions given by the Court; except that part of those instructions which relates to the onus probandi: and ■although we think this portion of the instructions as well founded, in justice and'law, as the other, yet it rests upon a different ground. The first part has relation to the liability of. the defendant, the second, to the question,- on whom devolves the burden of proof. If the question were one of the first impression, we should, upon the reason arid justice of the case, adopt the principle laid down by the Circuit Court. But although there is no case which could have the weight of aulhority in this Court, we are not without a decision in relation to it The very, point was decided in 2 Camp. 80 ; where it is said by Mansfield, Chief Justice^ that' he thought the plaintiff had.made a .prima facie' case, by proving his going ■ on the coach, the accident,, and the damage bia,had suffered.

It is objected, .however in die printed argument which has been, laid before us, that although the facts of the overturning of,the coach, and-.the injury-sustained, are prirna facie evidence of negligence, they did not throw uppn the defendant the burden of proving that such overturning and-injury were not occasioned by the driver’s default,- but only that the coachman >vas á person of competent skill in his business;. that the coach was properly made, the fiorsps steady, &c.

Now, taking that portion of the first and second instructions which relates to the burden of proof together, we understand them as substantially amounting to what the objection itself seems io concede to be a proper ruling, and what we consider to he the Jaw. For although, in the first, it-is said, that these facts threw upon the defendant the burden of proving that the accident was npt occasioned by the driver’s fault; yet, in the second, it is declared, that it was incumbent" on the defendant, in order to meet the plaintiff s prima facie case, to prove that the driver was a person of competent skill, of good habits, and in evejy respect qualified, and suitably prepared for the business in which he was engaged; and that' he acted on the occasion with reasonable skill, and with the utmost prudence and caution.

This affirmative evidence, thén, was pointed out by the Court as the means of proving'what was in terms stated in the form of a negative proposition before, that is, that the accident was not occasioned by the driver’s fault. . The third instruction also announces a principle, which we think stands supported by the soundest reason; and we should, therefore, adopt it as being correct,fif it were altogether a new question.

But this, too, is .in accordance with the doctrine of Lord Ellen-borough, in 1 Starkie’s Cases, 493, in which he says, that to enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach; it is sufficient if he were placed by the misconduct of the defendant, in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at¡ certain peril; if that position was occasioned by the fault of the defendant, the action may be supported. Qn the other hand, if the plaintiff’s act resulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to he attributed to rashness and imprudence, he-is not entitled to recover.

The instruction which we are now considering is framed in the spirit of the principle which we have just stated, and we think it wholly unexceptionable.

The fourth instruction which was given to the jury was in favour of the defendant,- now plaintiff in error, and, therefore, need not he considered. Upon the whole, we think that there is no error in the judgment. It is, therefore, affirmed, with costs.

This cause came on to.be heard on the transcript of .the record from the Cireuit'Court of the United States for the district of Maryland, and was argued by counsel. Qh consideration whereof,, it is ordered and adjudged by this Court, that the judgment of the Circuit Court in this cause be, and the same is hereby, affirmed with costs and damages at the rate of six' per centum per annum.