author: Mr. Justice Barbour

text:
    The President and Directors of The Bank of the Metropolis, Plaintiff in error, vs. Erastus Guttschlick, Defendant in error.
    Action on an agreement in writing, by which Guttschlick had purchased a lot of ground in the city of Washington, from the Bank of the Metropolis, for which he had paid a part of the phrchase'mohey, and given a note for the residue. By the contract, the Bank of the Metropolis; through its president and cashipr, was pledged to convey the lot in fee simple to Guttschlick, when the whole purchase money was paid. • The declaration in . each count averred the payment of the note, and the failure of the bank to convey. To the three special counts in the declaration, there was no conclusion; to the fourth count, for money had and received; there was a génerál conclu.sion. It was held by the Court, that whatever might have been the effect of the want of a conclusion to .the three counts upon a special demurrer, the thirty-second section of the judiciary act of 1189, would cure the'defect,;if it be admitted to be one.
    A corporation may be bound by contracts not executed under their common seal, and by the acts of its officers’in the course of their official duties — when, in a declaration, it is averred that a'bpnk by its officers agre'eij to a Certain contract, this averment imports every thing to make the' contract bifiding.
    An allegation that a party made, accepted, endorsed, or delivered a bill of exchange is suffi- ■ cient, although the defendant did not do either of those acts'himself; provided he,au- ' thorized the doing Of' them.
    •The averment in'a declarationjét forth that the plaintiffdiad been turnednmt Of possession of -a lot of ground, but did not state. that the eviction was by due course of law. The . . breach alleged in the count was, that the defendant, had refused, on demand, to convey the Jot., The Court hold the averment of eviction to be mete surplusage.
    The Bank of the Metropolis contracted to' deliver a title in feq simple to Guttschlick', Of ' ■ á lot of ground, and at the term of the contract they held the lot, by virtue-of a sale made under a deed of trust, at which sale they became-the purchasers of the property. The samé lot "had, by a deed of trust executed by the same person, been--previousIy conveyed to another person, to indemnify an endorser' of his notes, and it was by the '. trustee, afterwards, and after the contract with Guttschlick, sold-and purchased .by another. Held, that at the time of the contract of thé bank, they.had-not a fee simple in the lot which could be conveyed to Guttschlick.
    In- case of a deed of trust executed to secure a debt, unless in case of some extrinsic matter . of equity, a Court of Equity never interferes to delay or prevent a sale according to the-terms of the trust; and the only right of the grantor in the deed, is the right to any surplus which may remain of the moqey for which the property sold;
    The action in this case’-was .assumpsit against the bank on a contract under the seals of the president and cashier. Held, that the action .was well brought; and it makes no difference in an action of assumpsit against a corporation whether the agent was appointed under, the seal or not; or whether he-puts his own seal to a contract which he makes in behalf of the corporation.
    It is admissibleior the party who sues on a contract, to make á title to a lot of ground in fee simple which he had purchased, to give in evidence an examination of the records of the. office for the recording of deeds, by a witness who was searching into the title of the lot, and also a letter giving to the party who made’ the contract, a notice that the lot was about to be sold under a title superior to that under which he held. A 'deed from the vendor, informally executed, and which did not convey the title the vendor agreed to give, was also admissible in evidence, in an action against the vendor on the contract.
    A paper executed by the president and cashier of a bank, purporting to convey a lot of ground held by the bank, is not the deed of the corporation;
    The proceedings in an action against the endorser of a note, by the holder, which gave to a trustee, by the terms of the deed Of trust, a right to sell property held for the indemnity of the endorser, were proper evidence in an action on a contract for the sale of the lot, .fronj which the party who had purchased under another title had been evicted by a title obtained under the deed of trust. No exceptions to the regularity of the proceedings offered in evidence can be taken;, which should have been properly made in the original action by the party sued on-the same. '
    Whether evidence is admissible or not, is a question for the Court to decide; but whether •it is sufficient or not to,support the issue, is a question for the jury. The only case in ■ which the Court can make inferences from evidence, and pass upon its sufficiency, is on a demurrer to evidence.
    When a trust is created for the benefit of a third party, though without his knowledge at the time, he may affirm the trust, and enforce its execution. .
    Where a deed of trust was executed to secure the payment of certain notes, and a judgment obtained on the notes, the judgment did not operate as an extinguishment of the right of the holders of the note tp call’ for the execution of the trust; although the act of limitations might apply to the judgment.
    ERROR to the Circuit Court of the United States for the county of Washington], in the District of Columbia.
    This action was instituted by the defendant.in error, against the plaintiff in error, on the 31st day of March, 1836. The declaration contained four, counts.-
    1. ' That on the 9th of November, 1827, the plaintiff bought of defendant a certain lo.t of ground in the city of Washington, being lot 5, square, 489, for the sum of'eleven hundred and ninety-one dollars and twenty-five .cents, and paid the sum of five hundred and ninety-one dollars and twenty-five cents, and gave his promissory note for the balance of the purchase money ; that the defendant, in-consideration thereof, agreed through the president and cashier, that, it was pledged, when the nóte should be paid, to convey said lot to plaintiff, his heirs and.assigns; that said note was paid at maturity, with the interest: yet the .defendant has not conveyed said lot, but., to do so.has hitherto wholly refused, &c. .
    2. That whereas, the defendant, by John P: Van Ness, the president of. said bank, arid Alexander Kerr, the cashieT; agents for that purpose, duly authorized by and acting for defendant, did, on the 9th November, 1827, bargain and sell to the plaintiff the said lot of ground, on’the terms mentioned in the first count, and-did thereupon put plaintiff in'possession of said lot; and the plaintiff avers the authority of Van Ness and Kerr to make said agreement; that plaintiff paid the note, and received and continued in possession of the lot, and was obliged to pay, and.did pay taxes thereon, from the 9th November, 1827, to 30th December, 1835; when he was’ turned out of possession by the Patriotic Bank: yet defendant, although often requested, has not conveyed the said lot in fee simple to the plaintiff, but hath hitherto wholly neglected and refused.
    3. That whereas defendant, on the 9th November; 1827, by an agreement of that dáte, acknowledged. to have received from the plaintiff the sum of fi ve hundred and ninety-one dollars and twenty-five c.ehts, and the promissory note . of the' plaintiff, payable six months after, date, with interest, and in consideration thereof put the.plaintiff in possession of said.lot, and undertook and faithfully promised the plaintiff, upon the payment of said note, with interest, to convey to plaintiff said lot in fee simple ; that the plaintiff did pay said note, with interest,"whereby defendant became liable and bound to convey said lot in fee simple, by a good and indefeisible title, free from encumbrances; and béing so liable, undertook and promised, &c.: yet plaintiff says that -the defendant w;as not at the time.when, &c., or at any other time after seized or possessed of said lot in fee simple, nor did then or at any other time, although often requested to convey, &c. , And the plaintiff further avers, that being in' p.ossession of said lot, as aforesaid, he was compelled to pay and did pay the taxes and public dues, amounting to three hundred dollars, whereby, &c.
    ■ 4. The fourth count was for money had and received, and concluded as follows,- “ Yet the said defendants, the Said sums of money have not paid to the said plaintiff, nor have they paid any part thereof, but the same or any part thereof to pay to the said plaintiff, have hitherto wholly neglected and refused, to the damage of the said plaintiff* three thousand dollars, and.thereof,” &c..
    There was no conclusion to the three preceding counts in the de-. duration.
    The jury, under the charge of the Court, found a general verdict for the plaintiff for eleven hundred and ninety-one dollars and twenty-five cents, with interest from November 9, 1827.
    The counsel for the defendant took four exceptions to the charge of the Court.
    The plaintiff in the Circuit Court having given in evidence an account made out by the. Bank of the Metropolis,..against him, stating that he had bought a certain lot of ground described in the same, from the bank, for the sum of eleven hundred and ninety-one dollars and twenty-five cents, gives a credit for the sum of five hundred and ninety-one dollars and twenty-five cents as “cash received;” and the balance, six hundred dollars, to be due on the bon'd of the plaintiff, in the following terms, “ Be it known, that on this 9th* day of November, 1827, Ernest Guttschlick, has purchased of the Bank of the Metropolis, lot Ño. 5, in square Ño. 489, as above described, and as laid down on the plat of the city of Washington, for the sum of eleven hundred and ninety-one dollars and twenty-five' cents, and that he hath paid on account of the same, the sum of five hundred and ninety-one dollars and twenty-five cents, leaving due the sum of six hundred dollars, for which he hath given his note t'o the said bank, payable in six ¡months after date with interest from date, which -sum of six' hundred dollars, when, paid, will be in, full for the purchase money of said lot.
    “ The Bank of the Metropolis, through the president find cashier, is hereby pledged; when the above sum shall be paid, to convey the said lot, viz. lot 5, in SquaVe 489, in fee simple, to the said Ernest Guttschlick, his heirs or assigns,- forever.
    “Jn-testimony whereof; the said president and cashier, by order of the board of idirectors, have hereto set their hands and seals this ninth day of November; eighteen hundred and twenty-seven.
    “John P. Van Ness, [seal.]
    “ President of the Bank of Metropolis.

    “Alexander Kerr, Cashier, [seal.]
    “In presence of Geo. Thomas.”
    With evidence that he, the plaintiff, had paid the sum of six hundred dollars to the bank: the defendants excepted to the admissibility and competency of the same, until some evidence should be given, showing the authority of the parties who executed the same to sign said paper.
    The Court overruled the objection.
    The. defendant’s second bill of exceptions stated, that the plaintiff proved that in December, 1835, witness, at the-instance of the plaintiff, examined the records of deeds in Washington county, for the purpose of tracing the plaintiff’s title to the' lot in question, and; after such examination, wrote for the plaintiff his letter to the bank,dated 17th December, 1835; that when he wrote that letter, a deed, purporting'to be executed by John' P. Van Ness, president, &c., to the plaintiff, was before him, and is the deed referred to in said letter, having been handed to him by plaintiff. The' said deed was duly'recorded on the 13th of May, 1828, and appears to have been delivered in August, 1828. Statements were made by counsel, and the plaintiff offered to read in evidence said deed ; which being objected to, the Court overruled the objection, and defendant excepted.
    The third bill of exceptions -stated, that the plaintiff, in order to maintain the issue on his part, offered in evidence the proceedings of the Circuit C'úurt of the District of Columbia, for the county of Washington, in a certain suit brought by the Patriotic Bank against Samuel Lane, for the purpose of showing that Samuel. Lane had been in fact'sued upon the note for three .thousand dollars, one.of the note's mentioned in the deed from B. G. Orr, to Joseph Elgar, dated 21st of August, 1818; to the competency and admissibility of the same to prove the said fact, the defendant objected; blit the Court overruled the objection, and permitted the same to go to the jury. To the admission of which testimony the defendant, by his counsel excepted. The deed from B. G. Orr, referred to in the exception, was a deed of trust, executed on the 21st day of August, 1818, and duly recorded, to Joseph Elgar, by which Orr conveyed to Elgar certain lots of ground in the city of Washington, -in trust, that if Samuel Lahe should be sued, or put to any cost, trouble, damage, or expense; by reason' of his having endorsed certain notes drawn by' B. G. Orr, negotiable at the Patriotic Bank, the trustee should sell and dispose of the property conveyed by the same, and but of the .proceeds discharge the notes, or such as may have been substituted for them, and to indemnify the said Samuel Lane, &c.
    The fourth bill of exceptions stated, that the-plaintiff, to sustain the issue on his part,' gave in evidence the articles of agreement signed by John P. Van Ness, President of the Bank of the Metropolis, and Alexander .Kerr, Cashier of the Bank, with the plaintiff, for the sale of the lot; and- then, having proved that B. G-. Orr was seized in fee of the premises mentioned in the agreement, gave in evidence the deed from Orr to Elgar, referred to in the third exception, and then gave in evidence, a deed from B.. G. Orr to Kerf, authorizing^ the sale of the lot, for the purpose of discharging certain' notes, drawn by Orr, and discounted at the Bank of the Metropolis, and a deed made by Kerr to the Bank of the Metropolis, in pursuance of the trust, dated July 1st, 1825, under, which deed the bank entered into possession of the lot; and then'gave in evidence the proceedings in the Circuit Court, in the case of the Patriotic Bank against Samuel Lane, as stated in the third bill of exceptions, ,and proved by competent testimony, that-B. G. Orr had died in 1823, and Samuel Lane, in the year 1S22, both insolvent;'and that in the year 1835, said Elgar, at the instance and request of said Patriotic Bank? advertised the property mentioned in said deed to him for sale, in manner following, and that pursuant to said advertisement, he did, on the 21st day of December 1835, enter on the premises and expose to sale, and did sell, said lot No. 5, in square No. 489, and the said Patriotic Bank, by its cashier., became the purchaser, and said Elgar executed to said bank a deed for the same, and that the nett proceeds of said sale of said lot, was carried on the books of the said Patriotic Bank to the credit of said B. G. Orr’s note for three thousand dollars, mentioned'in said deed from said Orr to Elgar, still leáving, as appears by the said books, a balance due on the said note; and then gave in evidence a letter addressed by said plaintiff to said defendant, and then proved by competent testimony, that the said- lot was vacant, and unenclosed, and unimproved; and that after said sale and conveyance to said Patriotic Bank, the cashier .of said bank went on to said premises, in company with the attorney of said bank, and then and there declared that he .took possession of the same ; and that in the year 1824, the said lot was assessed on the books of the corporation of Washington, as the property of said Orr; and that from the year 1825 to the year 1828, both inclusive, the samé, was assessed to said defendant, who paid the taxes thereon; and that from the year 1829 -to the year 1-835, the same was assessed to said plaintiff, who paid the taxes thereon, and cóntinued in possession till.the year 1835, and from that - time, the Same has been assessed to said Patriotic IBank; and further proved that said plaintiff was duly notified by the cashier of said Patriotic 'Bank, of his intention to take possession of said lot,- in the manner and §t the time of his said entry as aforesaid, that that -said lot still remains and has constantly remained open, vacant, unimproved, and unenclosed; and further' proved that said plaintiff' had paid to said defendant the whole consideration money for which said lot was sold to him, and taken up pt maturity as part of said purchase money, the note mentioned in the agreement aforesaid, signed by said Van Ness and Kerr; and that the said Orr and Kerr, during their lives, and the saidElgar, the Bank of the Metropolis, and Patriotic Bank, were all in the city of Washington from 1818 till after 1835.
    The defendant moved the Court to instruct the jury, that upon this evidence the plaintiff was not'entitled to recover upon the first, or second, or third, or fourth counts in the declaration ; which instructions the Court refused to give; to which refusal the defendants excepted.
    The defendants presented this writ of error.
    The case was argued by Mr. Coxe, for the plaintiffs in error, and by Messrs. Semmes and Bradley, for the defendant.
    Mr. Coxe contended that the Circuit Court had erred in each and all the instructions given to the jury.
    He argued, that the proceedings-under the deed from Orr to Elgar, under which the Patriotic Bank claimed title to the lot sold to the defendant in error, were irregular and void. Eighteen years had elapsed between the execution of the deed of trust by Orr to Elgar; and if the-Patriotic Bank could come forward in 1835, to claim under a note given in 1S19, they should have gone into a Court of Equity before they could call on the trustee to sell. The deed of trust' gave only a naked power ; and after the elapse of so many years, no sale could -be made under it. He had exceeded his authority. Deeds of trust have the same effect as common law mortgages. In 18-35, when Elgar- undertook to execute the trust, there was no debt due to the Patriotic. Bank. A Court of Equity, as well as a Court of Common Law, would have presumed its payment.
    There is no evidence that Samuel Lane had been sued upon the notes; or had ever suffered damage, or been put to- expense. The judgment of the Patriotic Bank on the notes was obtained in, 1,823, against the administrator of Lane.
    By the law of Maryland, a judgment becomes inoperative after twelve years; and this judgment was iherefore invalid in 1835. The statute of limitations had created a complete bar to all claims on the notes of Órr, or on the judgment. The Patriotic Bank had no rights under either the -judgment or the notes.
    The Bank of the Metropolis had therefore become -entitled, completely and exclusively, under the deed to Alexander Kerr, to the lot; for if no proceedings could be had against Lane, how could the dfeed of trust from Orr to Elgar be put in force ? .No evidence could be introduced to shovv the right of Elgar. It was at an. end from time.
    The defendant in error-did not show on the trial aright to recover against the. Bank of the Metropolis. He has no right of action. He should have shown that he had tendered a proper deed to the bank, to be executed: but this is not shown, or averred. He should have proved that a power to sell the lot had been given by the bank to the president and cashier: but the Circuit Court did not require this.
    The deféhdant in error, was barred from sueing, by his,holding the deed for the lot, although it may have been defective; and by his holding possession under the deed, until he had demanded a better one from the Bank of the Metropolis.
    . All the counts in the declaration are defective but the fourth and last, as they have no conclusion; and the conclusion to the last count is inapplicable to the preceding three.
    Messrs. Semmes and Bradley for the defendant in error.
    It is extraordinary, that after the pleadings were made up in this case, a trial had, and the plaintiffs in error had*taker! four bills of exceptions,- objections, to the declaration should be first made in this Court. The party thus objecting is too late: he has wayed all right to take such exceptions. All defects in the declaration are cured by the verdict and by- the statute of jeofails. •
    So if- the defendant in the Circuit Court had an objection to the form of the action, he should have taken it by a plea. The contract is'set out in the declaration. It is a contract for the sale of the lot by the officers of the bank; and it has been held that the accredited agents of the bank have a right to bind it by their contracts. Hatch vs. Barr, 1 Ohio Reports, 390.
    It'is certain that the Bank of tire Metropolis made the pontract set out in the record, and did not keep it with the defendant in error. At the time they assumed the right to sell' the lot, the bank could pot legally convey it; nor has a legal title to it been made at any timé''by the bank. There, was an existing encumbrance on the lot which the bank did not remove, and which' has, subsequently to the sale to the defendant in error, been enforced; and he is entirely-divested of the property. He has paid the full consideration stated in the contract, and he now seeks to recover the same back from the bank. • This is resisted, and this-is the question in the case. On the part of the defendant in error every principle of equity and justice is in -full force. The bank would exempt itself from its obligations upon legal and technical grounds. But no.objections on such grounds to the recovery of the defendant in error will be found to exist. 20 Johns. Rep. 15. 20. , Sugden on Vendors, 6. Encumbrances on property are objections to a valid title. 11 Johns. Rep. 525. 2 Johns. Rep. 6131. 12 Johns. Rep. 190. 8 Wheat. 338. 12 Wheat. 64.
    The -authority of the agents of the bank to sell may be inferred from the acts of-the parties. The money of the defendant and his note were given to the bank for the property, and this property was acquired by the bank from one Of its debtors for the payment of a debt. This is authorized by the charter.
    This was a contract on the part of the bank to sell the lo„, free from all encumbrances. Cited on this point, 1 H. Black. 2 70. 280. 3 Bos. and Pull. 162. 4 Espinasse’s Rep. 221. 2,Esp. Nisi Plius. 639, 640.
    Was there an outstanding legal encumbrance on-the lot, superior to the title of the Bank of the Metropolis, at the time they made'the sale-’to the.defendant in error? '
    It must be admitted that any one interested in the trust given to Elgar, might call on him to execute'it; and if he was willing to do his duty, there was no" necessity to call in the aid of a Court of Chancery. The Patriotic Bank was the holder of the notes endorsed by Lane'; it was the cestui que trust. The bank was not barred by time. Their judgment was interlocutory, and was not affected by he statute of limitations of Maryland. The object of the deed of trust was to pay the notes, and thus to indemnify the endorser. The bank had a right to avail itself of the trust whenever it became known to them. 3 Johns. Ch. Cases, 261.
    The purchase of the lot by the Bank of the Metropolis was made subject to the deed of trust to Elgar. That deed was on record, and was notice, from its date, to all the world. Nothing but actual fraud can divest a mortgage properly on record, and that fraud must be proved. Cited, -the Recording Act of Maryland, 1815. 1 Johns. Ch. Cases, 298. 394-.
    Another objection has been made. It is said, that i lthough the length of time which had elapsed before the sale by Elgar, would not bar a mortgage, but it would bar a judgment. But to make a judgment a bar, the statute of limitations must ,be pleaded. It is not void, but may be made so by pleading the statute. There was no plea of the-statute in this case.
   Mr. Justice Barbour

delivered the opinion of the Court.

This was an action of assumpsit brought by the defendant in error against the plaintiff in error, in the Circuit Court of the United States, in the county of Washington, and District of Columbia.

The declaration contains three special counts,-and á count for money had and received. The three special counts are all' founded upon an agreement in writing, which, after reciting that the plaintiff in the Court below had bought of'the defendant,in the Court below, lot No. 5, in square No.'489, in the city of Washington, for which he had paid a part of the purchase money, and executed his note for the-residue,'-contains the following stipulation: “The Bank of the Metropolis, through the president and cashier, is hereby pledged, when the above sum, (that is,'the amount of the note,) is paid, to convey the said lot, viz. lot No. 5, in square 489, in fee simple, to the said Ernest Guttschlick, his heirs, or assigns forever.” Each of these counts avers the payment, at the timé agreed, of the amount of the note, and the failure of the bank, on demand, to convey the lot. At the trial several bills of exception werq_taken, and a verdict was found, and judgment rendered in favour of the plaintiff. To reverse that judgment, this writ of error is/ brought.

In the argumént at the bar, .various objections have been- urged to the sufficiency of the declaration, which we will'briefly notice,-in the order in which they were made.

The first objection is, that the special counts have no conclusion There is certainly no formal conclusion to either of these counts. Each of them, after alleging the breách, terminating with the words, “ Whereby, &c.” Whether counts thus concluding, would . have been sufficient upon a special demurrer in the Court .below, it is'fiot necessary to decidebecause we are clearly of opinion, that the thirty-second section of the Judiciary act, would c.ure the defect, if it were admitted to have been .one. '

The second objection which, was- taken, applies to the first count, viz., that the agreement sued on, is. averred to have been' made by the bank, “, through the president .and cashier,” without averring their authorization by the bank to make it. Wo consider this objection as wholly untenable.. The averment in this count is, that the bank, through these- officers,-agreed to convey the lot. .Now even assuming, for the sake of giving-, the ¡objection its full force, that the making of this agreement was not within the competency of .these officers, as such, yet it was unquestionably in the power pf the bank to give authority to its,own officers to do so. When, then, it is averred that the bank, by them, agreed, this- averment, in effect, imports the very thing, the supposed want of .which Constitutes the objection: because, upon the assumption stated, the bank could have made no agreement but by agents -having lawful authority. Nay, it would have been sufficient, in our opinion, that the bank agreed, without the words, through the president and cashier:” for it is a rule in pleading, that facts may be stated according to their legal effect. Now the legal effect of an ágreément made by an agent for his principal, whilst the agent is acting within the scope of his authority, is, that it is the. agreement' of the principal. Accordingly, it is settled, that the' allegation that a party made, accepted, endorsed, or delivered a bill of exchange, is sufficient, although the defendant did not, in fact, do either of these acts himself,-provided he authorized the doing of them. Chitty on Bills, 356, and the authorities there cited. This principle has been applied too, in actions ex delicto, as well.as ex contractu. In 6 Term Rep. 659, it was held, that an allegation that the defendant had negligently driven his cart against plaintiff’s horse, was supported by evidence,' that defendant’s servant drove the cart. In this aspect of the question, it' was one, not of pleading, but of evidence. If, on the contrary, the act were one in their regular line of duty, then, of course, the averment was unnecessary. In the case of Fleckner vs. U. States Bank, 8 Wheat. 358, the Court declare the point to be settled, “ that a corporation may be boundffiy cqntracts not authorized .or executed under its corporate seal, and by contracts made in the ordinary discharge of the official duty of its agents and officers,”

The next objection which was raised to the declaration applied to the second count, viz., that the averment that the plaintiff was turned out of possession, was insufficient -in this, that it is not averred to have been by process of law, or by the entry of one having lawful title. If entry and eviction were the ground of the action, or constituted the gravamen of the count, as in covenant on a warranty, or for quiet enjoyment, then, indeed, a declaration or count would be defective, which omitted to aver, that the plaintiff was evicted by due process of law, or by the entry and eviction of one who, at the time of the covenant, had lawful title, to the, land; and .having such title, entered and evicted the plaintiff; or which did not contain some averment of equivalent import. But upon examining the count in question, it will be found, that although this averment is contained in that count, it is mere surplusage; because the breach alleged, is, that the defendant refused, on demand, , to convey the land. There is nothing, therefore, in the objection, as applied'to this count; because it would be good without averring any eviction whatsoever.

The next objection to the declaration applies to the third count, and it is this; that the plaintiff, in that count, treats the agreement as importing an undertaking on the part of the bank to convey the lot in fee simplé, by a good and indefeisible title> free from encumbrances. In the view which we have taken of,this subject, it is unrecessary for us to decide whether the agreement does, or does not, .mport such an undertaking, on the part of the bank, as is ascribed to it in this count of the declaration. This count contains an averment that the bank was not at the time of the agreement, or at any timé after, seized or possessed of the lot in fee simple. 'We have seen, that the language of the agreement is, that the bank was to convey the lot in fee simple, to the defendant in error, his heirs, or assigns forever: Now it appears from the record, that the bank claimed under a deed from Alexander I£err, who sold the lot as trustee, under a deed of trust from Orr, the former owner, made to secure certain debts therein stated, which deed of trust was executed off the 8th of September, 1819. But Orr had previously, to wit, on the 6th' of August, 1818, conveyed the same lot, in fee simple, to Joseph Elgar, as trustee for the purpose of securing certain debts therein stated, and with power to sell, in certain events therein mentioned; one-of which was, that Samuel Lane, who was endorser of a note of three thousand dollars, secured by this last deed, should be sued, which event occurred as early as the year 1820. Now fr^m this state of facts, it is apparent that at the date of .the- agreement, the bank was not seized'of the fee simple which it contracted to convey. If the deed’ of trust to Elgar be considered as a-mortgage, then the moment it was executed, the legal estate in fee simple Was in Elgar, subject to be defeated upon the performance of the condition, and-so continued in him, from that time .down to the year 1835, when, under the trust deed he sold and conveyed the lot to the Patriotic Bank, which purchased at the sale. The interest of the mortgagor, according to the common law, is not liable to execution as real estate. 8 East, 467. 5 Bos. and Pull. 461. It is treated as equitable assets, 1 Vesey, 436. 4 Kent, 154. In conformity with this doctrine, this Court decided, 12 Peters, 201, that the wifé of a mortgagor was not dowable; and in 13 Peters, 294, that the;.equity of redemption could not be taken in execution unde, a fieri facias. ‘If this be so, in the case of a mortgage, the principle applies more strongly in case of a deed of trust, because the interest of the mortgagor, such as it is, is so far protected by a Court of Equity, that the mortgagee cannot foreclose, without a decree in equity; and even in that decree .a short time is allowed to the mortgagor, within which to redeem by paying the debt: whereas, in the, case of the trust, unless in case of some extrinsic matter of equity, a Court of Equity neyer interferes; and the only right of the grantor in the deed is the right to whatever surplus may remain after sale, of the money for which the property sold. There was then a good cause of action, on the ground that the bank had not the fee simple which it contracted to convey.

We think, then, that the declaration is not liable to any of the objections which have been urged against it.

Nor have we any doubt but that the action well lies against 'th¿ bank. For although the agreement is under seal, it is not the seal of .the corporation, but that of the president and cashier. It was decided in the case of Randall vs. Vanvechten, 19 Johns. Rep. 60, that covenant would not lie against a corporation, on a contract not under their corporate seal; but that an action of assumpsit .would Me: and that it makes no difference, in regard to a corporation, whether the agent is appointed under seal or not, or whether he puts his own seal to a contract which- he makes in their behalf, the doctrine of merger not applying to such a case. This doctrine we approve, and it is decisive of the objection.

We come now in order to the exceptions taken at the trial..

^he first was, to the Court’s admitting the agreement declared upon, to be given in evidence, until some evidence was previously given, showing the authority of the parties who executed it, to sign it.

Assuming, argumenti gratia, as we have before done as to this-point, that the transaction was such that an authority was necessary •'to be proven, the objection resolves itself simply in a question of the order in which evidence was to be given.

We think that there is nothing in it. • It was as competent for the party to prove the authority after, as it was before, giving the agreement in evidence.

The second exception was taken to .the Court’s admitting in evidence a letter from defendant in error to plaintiff in error, and the' testimony of a witness that he had examined the records for the purpose of tracing the title of the defendant in error to the lot in question; and also a deed purporting, to be executed by John P. Van Ness, president of the Bank of the Metropolis, to the defendant in error. The letter was -merely to inform the plaintiff in error of the sale then advertised to be made of the lot in question, under the deed of trust from Orr tp Elgar. The examination of the records made by the witness, was made for the purpose of enabling the defendant in error to decide what course to pursue in relation to the property. We see nothing objectionable in the admission, either of the letter or the testimony of the. witness. The plaintiff in error certainly was not injured by its admission. The. property which the defendant in error had bought being about to be sold, he causes^ an examination to be-made, that he might know what ground he stood on; then, out of abundant caution,, he wrote the letter giving notice of the. sale, so that the other party might pursue whatever-course they thought best for their safety. .The most that can be said of it is,.that,he thereby proved that he had done more than he was bound to do. For if he had chosen, he might have rested upon his contract, without troubling himself either in examining records or giving the other party notice. Nor have wé .any doubt as to the admissibility of the deed; some of the counts in the declaration charged as -a. breach of the. agreement, the failure of the other party to make a deed; a paper having been executed having the form of,a deed, it was altogether proper then, to-give it in evidence, to show that being sealed, not with the corporate seal, but with that of the president of the bank, it was no deed; and thus sustain the allegation ; that no deed had been made. It is clear, beyond doubt, that a paper such.as-this, not under the corporate seal, is not the deed of the b.ank, in contemplation of law.

, -The third excéption was taken t'o the Court’s receiving in evidence the record of a suit by the Patriotic Bank against Lane, for the purpose of shoving that Lane had been sped upon a note for three thousand dollars, mentioned in the deed from.B. G. Orr to Elgar, dated August 20th, 18IS. We think that this record was properly' admitted. For one important question in the cause was, whether thé occasion had occurred which justified Elgar, the trustee, in the deed of trust from Órr, to sell the lot in question. Now one of the provisions of that deed authorized him to sell, whensoever Lane should be sued on the note for three thousand dollars, given by Orr to. the Patriotic Bank and endorsed by .Lane, and to payoff that note to the bank. Now this record, proved that Lane had been sued, that therefore the casus fedoris’ had occurred; that the land was rightfully sold; and therefore we think was admissible for the purpose for which it was offered. But it was argued, that the note stated in the deed of trust as the one endorsed by Lane, purported to be negotiable at the Patriotic Bank, and that the note declafed upon in the record did net purport to be negotiable at that bank, and that there was therefore a. variance. ' 'If the question had been raised in the suit brought upon the note, it might have been considered a' misdescription; but in this case it was offered in evidence to the jury to prove the fact that- Lane .had been sued; it wás a question for the jury to consider, whether this evidence was sufficient to satisfy them that it was the same debt as the’ one. described in the deed, from Orr to Elgar;. and therefore the principle' of law, that the allegations, in the parties’ pleadings, and their proofs, shall correspond, has no application.

The last exception, after setting out certain evidence given by the plaintiff, without even stating that it was all the evidence, states that the defendant prayed an instruction, that upon that evidence, the plaintiff was not entitled to recover either upon the first, or second, or. third, or fourth counts in the declaration, which instruction the Court refused to -give: and we think very properly. Whether evidence is admissible or not, is a question for the Court to decide; but whether it is sufficient or not, to support the issue, is a question for the jury. This Court said, in the United States vs. Laub, 12 Peters, 5, It is a point too well settled to be now drawn in question, that the effect and sufficiency of the evidence, are for the consideration and determination of the jury.” Aqd this proceeds upon this obvious principle. It is' the province of the jury to decide what facts are proven. It is. competent to them, to draw from the evidence before them, all such inferences and conclusions as that evidence conduces to prove. If the Court were to tell, them, that upon a given state of evidence, the plaintiff could, or could not recover, then they must in the assumption of what facts were proven, either discard from their consideration such inferences as the jury'might draw, or they must themselves, deduce them. The first course would injure the party offering the evidence; the second would be an usurpation of the office of the jury. The only case in which the Court can make such inferences, and pass upon the sufficiency of th.e evidence, is by a demurrer to evidence. This would be the'- case, .even if the bill of exception professed to state all the evidence; but the one which we are now considering does not' profess to do this, and we cannot assume that it was all. For aught that appears on this record, there was other evidence; it is enough, however, that it does not appear that the evidence stated upon which the instruction was asked, was all.

Having now finished our examination of the several exceptions, we will very briefly notice some points which were pressed upon the consideration of the Court. It was said that the deed of trust from Orr to Elgar, under which the lot in question was sold, was made to indemnify Lane as endorser of Orrs note; that the Patriotic Bank had no right to call upon the trustee to sell it; that its only right was in a Court of Equity to ask to be substituted to the rights of Lane: but upon examining the deed of trust, we find in it a provision, that upon Lane’s being sued, the trustee shall sell the lot, and after paying the expenses of the sale, apply the proceeds to the discharge of the notes of Orr, endorsed by Lane, of which the note on which the suit was brought against Lane; was one; so that this agreement fails in its foundation. We entirely concur with the doctrine laid down in 1 Johns. Chan. Rep. 205. 3 Johns. Chan. 261, that where a trust is created for the benefit of a third party, though without his knowledge at the time, he may affirm the trust, and enforce its execution. The truth is, that although the object of the deed of trust was to secure Lane, its provision, that, in the event which happened, of his being sued, the property should be sold, and the notes which- he had endorsed, should' be paid, was the most effectual means of attaining that object: these notes were due to the bank, were held by it, and in paying them, therefore, the money must be paid to the bank. Hence the trustee was authorized to sell at its instance, and to pay it the amount.

It was also argued, that the judgment against Lane was barred by the act of limitations, and that, therefore, the trustee was no.t authorized, to sell for the purpose of paying a debt which could not be enforced; the provision of the deed which,we have already referred to, furnishes an answer also to this objection; for. even if it were barred, the claim was in full force, under the trust in the deed. For, although the' judgment extinguished the- right of action upon the note, yet upon well-established principle, it did not operate' at all, by way of extinguishment of the collateral remedy under the deed of trust, though it had relation to, and was intended to secure the payment of the same .note. The result, then,,of this state of things is, that the property bought by the defendant in error, of the plaintiff in error, was legally sold under an elder subsisting lien; a.nd thus he was utterly divested of all title, so as to show an, entire failure, of the consideration for which he paid his money, and to enable him to maintain an action for money had .and received, to recover it back. 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 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 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 and damages at the rate of six per cent, per annum.


source: Caselaw Access Project

author: Mr. Justice Wayne

license: Public Domain

text:
    Elias Kane, Plaintiff in error, vs. Gabriel Paul, Executor of Edward Coursault, deceased.
    Letters testamentary to the estate, of Edward Coursault, a merchant, who had died at Baltimore, were granted to Gabriel Paul, one of the executors named in the will. The other executor, Aglae Coursault, the wife of Edward Coursault, did not qualify as executrix, nor did she renounce the execution of the will. Afterwards, on the application of Aglae Coursault, stating she was executrix of Edward Coursault, accompanied with a power of attorney, given to her by Gabriel Paul, the qualified executor, who had removed to Missouri, the commissioners under the treaty of indemnity with France,, awarded to the estate of Edward Coursault, a sum of money, for the seizure arid confiscation of the Good Friends and cargo, by the French government. During the pendency of the claim before the commissioners, Aglae Coursault died; and letters of administration, with the will annexed, were, on the oath of Thomas Dunlap, that the widow and executrix of Edward Coursault was dead, granted by the Orphans Court -of the county of Washington, in the District of Columbia, to the plaintiff in error, Elias Kane, a resident in Washington. The sum awarded by the commissioners was paid to Elias Kane, by the government of the United States. Gabriel Paul, the executor of Edward Coursault, brought an action against Elias Kane, for the money paid to him. Held: That he was entitled to recover the same. The letters testamentary granted in Maryland, entitled the executor of Edward Coursault to recover, with out his having the letters of administration granted by the Orphans Court of Washington repealed or revoked.
    At common law, the appointment of an executor vests the whole personal estate in the person appointed executor, which he holds as -trustee for the purposes of the will, and he holds the legal title in all the chattel^ of the testator; and, for the purpose of administering them, is as much the proprietor of them as was the testator. The ordinary cannot transfer those chattels to any other person by granting administration of them.
    The act of Congress of the 24th June, 1812, gives to an executor or administrator, appointed in any state of the United States, or in the territories, a right to recover from any individual within the District of Columbia effects or money belonging to the testator or the intestate, in whatever way the same may have been received, if the law does not permit him to retain it, on account of some relations borne -to the testator or to his executor, which defeats the rights of the executor or administrator; and letters testamentary or letters of administration obtained in either of the states or territories of the Union, give a right to the person having them to receive anil give discharges for such assets, without suit, which may be in the hands of any person within the District of Columbia. The right to receive from the'government of the United States, either in the District of Columbia, or in the state where letters havei been granted, any sum of money which the government may owe to the testator or intestate at the time of his death, or which may become due thereafter, or which may accrue, to the government as.trustee for a testator or intestate, in any way or at any time, is given by that' act. A bona fide payment of a debt to the administrator, which was due to the. estate, is a legal discharge to the debtor, whether the administration be void or voidable.
    The certificate of the Register of Wills, annexed to the proceedings of the Orphans Court of Maryland, giving letters-testamentary to the executor, shows that the will had been proved, and that the letters testamentary had been.granted. This is proof that the person holding the letters testamentary is executor, as far as the law. requires it to be proved, in an action of assumpsit upon a cause of action which arose in the time of the testator or of the executor. Gn the plea of the general issue in such an action, and even in a case where that plea raises the question of right or title in thé executor, the certificate of probate and qualification meets the requisition. A judicial examination'into their validity can only be gone into upon a plea in abatement, after oyer has been craved and granted; and then, upon issue joined, the plaintiff’s title, as executor or administrator, may be disputed, by showing any of those causes which make the grant void ab initio, or that the administration had been revoked.
    The declaration in an action by an executor for the recovery of money received by the defendant after the decease off the testator, may. be in the name of the plaintiff, as executor, or in’his ovm name, without stating that he is executor. The distinction is, that when an executor sues on a cause of action which occurred in the lifetime of his testator, he must declare in ■ the detinet, that is, in his representative -capacity only; but when the cause of action accrues after the death of the testator, if the money when recovered will be assets, the executor may declare in his representative character, or in -his own name.
    . IN error to the Circuit Court of the, United States for the county of Washington, in the District of Columbia.
    Edward Coursault, then a merchant of the city of Philadelphia, in December, 1.809, was'the owner of the brig Good Friends, and part of her cargo. . Both- the brig and cargo were seized at Moríais, in. France,.by order of the French government, and were confiscated. .
    In 1825, Edward Coursault died in Baltimore, where he resided at the time of his decease; and by his will, dated August, 1814, he appointed Aglae Coursault, his wife, his executrix, and Gabriel Paul his executor.
    On the 27th August, 1814, letters testamentary of the will were granted in Baltimore to Gabriel Paul. Mrs. Coursault did not qualify, nor did she renounce, as executrix. Some time afterwards, Gabriel Paul removed to the-state of Missouri. .
    The claim of the estate of Edward Coursault, for .indemnify for the seizure ánd confiscation of the brig Good Friends and cargo,, having -been provided for by the convention between the Unitéd. States and-France,, concluded at Paris, in July, 1831, Aglae Coursault,- styling herself the widow and executrix of the last will and testament of Edward Coursault, in January, 1833, presented a memorial to the board • of commissioners appointed to carry the convention into effect, claiming indemnify for the seizure and confiscation of'the brig and cargo.
    The pnemorial stated the death of Edward uoursault, the-appointment of the memorialist and Gabriel Paul exe.cutors, by his last will, that letters ■ testamentary. were granted to the memorialist and Gabriel. Paul; and the memorial' also states that whatever amount of said claim may be awarded under said convention, will belong solely and exclusively to the memorialist, as executor of the last will and testament of the said Edward Coursault, deceased!
    Together with the documents presented to the commissioners, showing the property of the Good Friends and part of her cargo to have belonged-, at the time of the seizure and' confiscation, to Edward Coursault, there was á power of attorney from Gabriel Paul, as “ administrator of the estate of Edward Coursault,” to Mrs. Agla.e Coursault, authorizing her to present in his name to the commissioners of the United States the claim of the estate of Edward Coursault, promising to present himself before them as soon as required.
    The commissioners awarded the sum of seven thousand eight hundred and sixty-four dollars, in favour of the claimant.
    _ On the 27th of March, 1837, an affidavit was made- and presented to the Orphans Court of the county-of Washington, in the District of Columbia,- stating that Edward- Coursault had died in the city of Baltimore, in 1814, and that Aglae Coursault, his widow and executrix; had died about two years before the making of the affidavit.
    On the 29th of March, 1837, the judge of the- Orphans Court directed letters of administration, with the will annexed, to be issued upon the estate of Edward Coursault, to Elias Kane, Esquire; and the sum awarded on the claim of Aglae Coursault by the commissioners, was paid at the Treasury of the United States to Mr. Kane, as the administrator.
    . Gabriel Paul, in November, 1837, as executor of Edward Coursault, having taken out letters of administration in the District of Columbia, instituted a suit in the Circuit Court of the county of Washington against Elias Kane, for- the recovery of the sum. paid to him by the United States; and at November term, 183S, the cause was tried, and á verdict and. judgment were rendered for the' plaintiff.
    At the trial, the defendant in the Circuit CoUrt gave in evidence an exemplification of the letters of administration granted by the Orphans Court of the county of Washington; .but the Court directed the jury that they were no bar to the action of the plaintiff. The defendant excepted to this opinion of the Court. And the plaintiff having offered in evidence the award of the ‘ commissioners, the power of attorney from the plaintiff to Aglae Coursault, (by cdpies from the State Department*) and his letters testamentary, with a copy of the will annexed; and having proved that the plaintiff was then living; the Court directed the jury that the plaintiff, if the said evidence was believed, was entitled to recover the amount received by the defendant under the award. The defendant excepted to this direction of the Court, and prosecuted this writ of error.
    The cause was argued by Mr. Key, with whom was Mr. Kane, for the plaintiff in error; and by Mr. Coxe and Mr. Semmes, for the defendant.
    Mr. Key, for the plaintiff in error,
    contended that the letters of administration granted to the plaintiff in the District of Columbia, were not void; and that the instructions .of the Circuit Court were erroneous.
    If there had not been special legislation on this subject, no doubt could be entertained of-the invalidity of the letters of administration granted to Gabriel Paul, in the. District of Columbia; after those which had been granted to the plaintiff in error. By the general law, administration is to be granted in the place where-the property of the deceased person is found; and letters testamentary drawing their authority from a different state or country, have no validity. 9 Wheat. 571. Smith vs. the Union Bank of Georgetown, 5 Peters, 518. Story’s Conflict of Laws, 422. 429 — -433.436. 439. 20 Johns. Rep. 265.
    The special legislation by the Act of Congress of 24th June, 1812, was not intended to make a general- change .ón this subject. It meant only to authorize suit to be brought on foreign letters of administration, or letters of administration granted out of the District of Columbia. The Court will lean in favour of this construction of the act; and by giving it this limitation, will prevent, as far as possible, the infraction of the principle, that the personal estate of. an intestate, or decedent, is to be distributed according to. the local law of the place where it may be.
    Nor can the act of Congress of 1812, be construed to take away the authority to issue letters of administration in this District, when no administration of the deceased is within- the District, and there are personal effects belonging to the deceased within the same.
    The law does not take away this jurisdiction of the Orphans Court of the county of Washington to issue letters of administration. While it authorizes a foreign administrator to come into this District,, it leaves the authority of the Orphans Court as it. existed before the act. Such a construction' of the law would be most unreasonable, and would produce great difficulties and inconveniences. There is no power .to compel a foreign administrator to come into this District and collect the ássets of the estate. Thus the personal property of a decedent might be wasted and Tost. But to construe the law, as is conterrded for by the plaintiff in error, is to give it all the efficiency requisite, and essential to the purposes of the legislation. The foreign administrator may institute suits in the District; but over assets which are in the District, an administrator duly appointed by the Orpháns Court, before the foreign administrator comes here, has full and exclusive control and authority.
    In support of this construction of the act of Congress, the counsel cited United States vs. Fisher, 2 Crunch, 35, Baldwin C. C. Rep. 316. Co’wper, 391. 6. Dane’s Abridgment, 601. 593. Foster’s Case, 11 Coke’s Rep. 64a.
    The power given to an administrator in the District, is t.o collect and administer the estate of the intestate according to the lex rei sitae. After his appointment ho cannot excuse himself for neglecting to collect the assets of the estate by alleging that there was another and a foreign administrator: nor would the payment of a debt to a foreign administrator, by a' person in the. District, be a bar to the claim of an administrator appointed here. Suppose- an administrator appointed in the District should have brought suits, would they abate when a foreign administrator comes here? It is admittéd that the act of Congress of 1812, may be interpreted to give concurrent powers to foreign and domestic administrators, but not to make the powers of the foreign administrator exclusive. Story’s Conflict of Laws, 431.
    There is another view of this question. This is not a debt which was due to the intestate in his lifetime. It is money of the estate which came into this District in 1827; and the letters testamentary, granted in Baltimore, were issued to Gabriel Paul, in 1814. The action in the Circuit Court was not for money due to' the testator, but due to the executor of Co.ursaült. The. action is not, therefore, authorized by Jhe act of Congress, as it authorized suits by the representative of a decedent; but. this is a suit in his own right by the executor.
    A suit may be brought by an administrator for the recovery of a debt due to him, contracted with him in his capacity of administrator, after the decease of his intestate. 4 Mason C. C. Rep. -34.' But the act of Congress gives no power to sue, except in cases where' action can he brought bn letters of adrtiinistration.for-'debts to, or cm .contracts •with, the intestate. It has no application to suits which a party might'institute without letters of administration; such as suits for claims'by the administrator on-debts due on contracts or obligations which have arisen after the decease of the party represented by him.
    An objection lies to the original letters testamentary granted in Baltimore to Gabriel Paul. ■ The will of Edward Coursault ap pointed.two-executors, and yet without any renunciation by Aglae Coursault, the letters testamentary are issued to Gabriel Paul alone. This is contrary to the testamentary act of February, 1777¡ ch. S.
    The counsel for the defendant'in error stated, that the application. to the commissioners under, the treaty of indemnity with France, was made by Aglae Coursault acting as .executrix of her husband, and under a power 6f attorney from' Gabriel Paul, who had regularly proved the will and taken out- letters testamentary. The award Of the commissioners was to the executor; -this was regular. The sum awarded was the property of the estate .of Edward Coursault, being an indemnity for the seizure of his property in his lifetime; and the claim for a recompense for this injury .passed to the executors of his will.
    Thus'situated, and Aglae Coursault having died, the- plaintiff in error came forward; and disregarding the rights of the defendant in error, which were his by the letters testamentary; and by the award of the commissioners under the treaty, he obtained possession of this -money under letters of administration granted to him in the District of Columbia. He did not come forward as a creditor of the estate -of Edward Coursault, but as a stranger, and took pos-. session of the fund. This was an illegal interference with the rights of the executor, and cannot be alio weld. The provisions of the act of Congress on the subject of the claims iinder the treaty with France have .been violated; rights clearly vested under the law ,and by the award of the commissioners have been disregarded.
    The fund awarded under the treaty with France was not assets in the District of Columbia. The claim had been presented on the part of the representatives of a merchant of Baltimore, for the seizure of,his vessel'and cargo; and the United States having received the money from France, were trustees for tlje -claimants to distribute the same among them. If this fund had, ány location, it was in Baltimore.; there the United States were bound to.pay the ariiount awarded to the executor of Edward Coursault. In point'd fact the money, was paid ip New York, as there it had been kept by the United States when received from France. All that was required was the presentation of the award of the commissioners, to the agents of the United States in New York.
    The action in the Circuit Court was properly brought. But if this was not so, the exception should have been taken by a plea in abatement. The plea of the general- issue admits the right of the executor to sue. S Wheat. .542. ' 1 Peters,. 386. 4 Peters, 500. Baker vs. Biddle, Baldwin’s C. C. Rep. 394. To show the right of the executor to sue, cited Biddle vs. Wilkins, 1 Peters, 486. 1 Yentris, 535. 1 Mod. 213. 2 Mod. 149. Hobart* 46. 2 Lord Ray. 701. 1 Williams .on Executors, 155. An administration granted, where there is an executor, is Void. '3 Bos. and Pull. 30. Toller on Executors, 120. 8 Cranch, 1.
   Mr. Justice Wayne

delivered the opinion of the Court.

It appears in this case, that Edward Coursault being domiciled in Baltimore, died there in the year 1814; and that by his will, dated the 13th August, 1814, he appointed Aglae Coursault, executrix, and Gabriel Paul, executor.

On the 27th August, 1814, letters testamentary were granted in Maryland to. Gabriel Paul — Paul is still alive. Edward Coursault being the owner of the. brig Good Friends, and part of her cargo, both were seized and confiscated at Morlaix, in the-year 1809,'by' the French government.

' Paul, the qualified executor of Coursault, by a power of attorney dated the 1.8th of October, 1832, he being then a resident of Missouri, empowered- Aglae Coursault to present a memorial in his name to the board of commissioners, appointed under the act of Congress to carry into effect the convention between the United States and his majesty the'king-of the French, concluded at Paris, on the' 4th day of July, 1831, for the.claim of the testator to indemnity on account of the'confiscation of the Good Friends, and her cargo; stating in his power, that he would present himself before the board of commissioners as soon a? he might be required. Under this power, Aglae Coursault memorialized the commissioners; -in which memorial, after reciting the seizure and confiscation of the Good Friends and her cargo, what the cargo was, the value of the vessel and her freight, and that Edward Coursault had incurred great expense in defending his rights; it is said, letters testamentary were granted to herself and Gabriel Paul, and'that whatever sum may be awarded upon the claim-, it would belong exclusively to herself.

The-commissioners made an award in favour of the claim..

After this award was made, Kane, the appellant, applied to the Orphans Court of the county of Washington, in the District of Columbia, for letters of administration upon- the estate of Edward Coursault; and upon an affidavit of Thomas Dunlap, stating that the widow and executrix, Aglae Coursault, was dead, an order was. made to issue letters of administration to the appellant, upon the «state of Edward Coursault; and letters of administration de bonis non,'with the will annexed, were.' given to him, he having entered into bond; with Thomas Dunlap and John K. Kane, as securities'for the faithful performance of his'duties..

Kane applied' for, and received from the proper department of the government, a part of the sum awarded by the commissioners upon the claim of Edward Coursault: and this suit was brought by Gabriel Paul, the executor, to recover frorn Kane the moiiey he received, in his character of administrator de bonis non, cum testamen to. annexo.

The declaration contains three counts, in each ,of which the plaintiff claims as executor. The defendant pleaded non assumpsit; and issue being joined, a jury was called to try the issue. • On the trial, besides other evidence, the plaintiff produced his letters testamentary, granted in 1814, in Maryland; and the defendant offered in evidence an e-xemplificatioir-'of the letters of administration granted, to him by the Orphans. Court of Washington county, District of Columbia, in 1837.

The Court charged the jury, that the letters óf administration offered by the defendant, were no bar to the plaintiff’s action; but. that the plaintiff’s letters testamentary and the other evidence, if believed by the jury, entitled him to recover the amount the defendant had received upon the- award of the commissioners, according to the certificate of that amount, given by John H. Houston, a clerk in the fifth auditor’s office. The jury gave a verdict in favour of the plaintiff; the défendaht having first excepted to the instructions of the Court. .

The point then made by this’exception to the. instruction of the Court is, do the letters testamentary, obtained by the plaintiff in Maryland, prevail over the letters of administration de .bonis non, cum testamento annexo, given to the defendant in the District of Columbia, so as to entitle the former to recover from the latter, the money received by him in súch character, without a repeal or revocation of such letters ?

The answer to that question will depend upon the legal character •of the letters granted to the defendant.

Are they void or voidable ?

In Com. Dig. Adm. B. 1, it is said, If there be an executor, and administration be granted before probate and-refusal, it shall be void on-the will being' afterwards proved; although the will were suppressed or its existence were unknown, or it were dubious who was executor, or he were concealed or abroad at the time of granting the administration. So in Com. Dig. B. 2, B. 10, If there be two executors, one of whom proves the will and the other refuses, and he who proves the will dies, and administration is granted before the refusal of tire survivor, subsequently to the death of his co-executor, or if granted before the refusal of the executor, although he ■afterwards refuse, súch -administration shall be Void. In all these cases, the administration is a mere nullity.. The executor’s interest the-ordinary is incapable of divesting. Toller on Ex. 121.

In tbe case of Griffith vs. Frazer, 8 Cran. Rep. 24, the Court says, The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, hut he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels,, gs was the.testator himself while alive. This is incompatible with any. power in the ordinary to transfer those chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right, and is a void act.”

Such is the Common Law.

Notwithstanding the extended jurisdiction given by the statutes of Maryland to the Orphans Court in testamentary cases, we cannot .see in them any alteration of the legal consequence' resulting from the grant by that- Court, of letters .of administration, in case of a will, when there is an executor not disqualified by law, or who has not been- excluded from acting in conformity to law. The grant of administration is void, as at common law. The powers-given to the Court are intended to protect the rights of executors ; not to enlarge its jurisdiction to transfer them to another per-, son. 'I’he action of -the Court, to be effective to grant administration upon a will, an executor being alive, and capable of acting, must-be within its powers. If not, the administration will be void. This conclusion is sustained too by the stern manner in which the Orphans Court is confined within its jurisdiction by the statute of 1798, ch. 101, sub-ch. 15. “The said Orphans Court shall not, under’any pretext of incidental power or, constructive authority, exercise any jurisdiction whatever not expressly given by this act, or some other law.”

. The letters being void, the person named in them .cannot retain from the rightful executor the testator’s effects; upon the plea that he may do sp until the letters have beep revoked by the’Court which granted them. The appearance of an executor with proof of the will and letters testamentary, subsequently to the grant of letters of administration in a case where it was supposed there was no will, is of itself a revocation of the latter; and so is .the Maryland law. Dorsey’s Maryland Testamentary Law, 4 sec. 77.

In this casé, then, though the right of the plaintiff to sue in the District of Columbia is given by the act of Congress of the 24th June, 1812; Davis’ Dist. Laws, 266; his right to recover rests upon the legal conclusion that the defendant never was administrator to administer the effects of, the testator: the act of the. Orphans Court naming him such, being void, ab initio. ' His right'under that act is, to “maintain any suit or action, and-to prosecute and recover any claim in the District of Columbia, in the same manner as' if his letters testamentary or administration had been granted by the proper authority,”j&c. &e..“in such District.”

In the case before us, there was a will which had heén proved in Maryland; letters-testamentary granted to an executor; that executor was alive (and is still so) when the Orphans Court gave letters to the defendant, upon the proof .that the executrix named in the will was dead; without any inquiry concerning the executor, but in the face of the certificate of his letters .testamentary..

It was repeatedly asked on the argument of this cause, what rights, can letters testamentary, or of administration, granted' ih either of -' the states of this Union, give to an executor or administrator in the District of Columbia, except the right to sue, given by the act of Congress of 1812. Davis’ Dist. Laws, 266.

We answer, that the right to sue -in-the manner it is given, gives the right to such executor or administrator to recover from any individual within the District of Columbia, effects or money belonging to ,the testator, or intestate, in-whatever way they may have been received, if the law does not permit him to retain them on account of some relation botne to the testator or to his executor, which, defeats the executor’s right; and that letters testamentary, or of administra..tion, obtained in either of the-states or territories of this Union, give a right to the-person haying them to receive and give discharges for assets, without suit, which may be in the hands of any person within the District of Columbia: and the right to receive from the governr ment, either in the District-or in the state where letters have been granted, any sum of money which the government may owe to a testator 6r intestate at the time of his’ death,' or whieh may become due thereafter, or which may accrue to the government from a testator or intestate, in any way or at any time. . And a bona fide payment' to the administrator of a debt dué to the, estate, shall be a legal discharge to the debtor, whether the administration be void or voidable. Toller, 130. Allen vs. Dundas, 3 Term Rep. 125.

It was however urged, that the Court' erred in its instruction to the jury, because the letters testamentary of the plaintiff appear on the face of, them to have been granted ih violation of the law of-Maryland, Dor. Test. Law, 6 sec. 77. which declares that letters testamentary shall not be granted to any one, or to any number of executors less than the whole; unless there shall be such proceedings, against each óf them failing, as' would authorize the issuing of letters of administration in case"of the failure of a sole named executor. Whether such proceedings were had or not, the record does not show: but if it did, the objection would not -prevail. The certificate, of the Register of -wills annexed to the proceeding of-the Orphans Court, giving letters 'to the defendant, shows that the -will had been proved,, and that the plaintiff had received-letters, testamentary. That he is executor, then, is proved, as much as the law' requires it to be;, whether the declaration is ih assumpsit upon a cause of' action arising in.the time of the testator, or.in that of the executor. The plea was the general issue; and even in a case where that plea raises the question of right or title in the executor, the certificate of probate, and qualification as executor, meets the -requisition. A judicial examination into, their validity can only be gone into upon a plea in abatenient, after oyer has been' craved and granted; and [hen upon issue joined, the plaintiff’s title., as executor or administrator hiay.be disputed, by showing any of those causes which make, the grant void, ab initio, or that the administration has been revoked.The title .'of an administrator is proved by the production of the letters of administration. 2 Phil., Evi. 550, 551. Childres vs. Emory et al. 8 Wheat. 671. Nor can such objection prevail,because thé plaintiff omitted to make profert of his lexers testamentary in his declaration, for that is aided, unless the defendant demur specially for the defect. 4 Anne, ch. 11. 1 Saunders on Pleading, 574.

It was also objected against the recovery in this case, that the money of the testator having been received by the defendant after the death of the testator, the declaration should have been in the plain tiff’s own name, and not as executor. The law is now well established that it may be in either form. The distinction is, .that when an executor sues in respect of. a cause of action which occurred in the lifetime of the deceased, he must declare in the detinet, that is, in his representative capacity only. But where-the cause of action accrues after the death of the testator, if the'money recovered will be assets, the'executor may declare in his representative character, or in his own name.

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 and damages at the rate of six per centum per annum.


author: Mr. Justice M'Lean

text:
    William Covington, Plaintiff in error, vs. David A. Comstock, Defendant in error.
    An action was instituted in the QjrctSt Court of Mississippi, on a promissory note, dated at and pray able in New York.., 'The 'declaration, omilted to state the place at which the note was payable, and that a demand of payment had been made at that place. The Court held, that to maintain an action against the drawer of a promissory note or bill of exchange, payable at a particular place, it is not necessary.to aver in the declaration that the note, when due, was presented at the plaeejfor payment, and was not paid; but the place of payment is a material part in the description .of the note, and must be set out . in the declaration.
    IN érror to the District Court of th'e'United States'for the.Northern District of Mississippi.
    An action was instituted in the District Court of Mississippi, by the defendant in error, on a promissory note, dated at New. York, March 2, 1836, by which Covington and M'Morris promised to pay four thousand five.'hundred and sixty dollars and four cents, six months after date, to Nelson, Carleton, and Company, at New York. The noté was endorsed .by the drawees to the defendant in error, David A. Comstock.
    The declaration on the note omits, to state the place where the. 'note was payable; and on the trial, the note was.offered in evidence, • and objected to by the defendant. The Court allowed the note to he given in evidence ; on whichT'the defendant tendered a bill of exceptions; and a'verdict and judgment having been rendered for the plaintiff, this writ of error was prosecuted.
    The case was argued by. Mr. Cocke, with whom was Mr. Key, for the plaintiff in error: no counsel appeared for the defendant.
    Mr. Cocke contended that it was necessary to state the place at which payment of the note was to be made; and to- prove a demand at that place.
    2.' That the note, being joint, a separate action could not be maintained upon it. -
    Nothing is clearer, than that a declaration on a note payable at a particular‘place, should state the place of payment. The omission to do this is fatal. Cited, Bailey on Bills, 429. 3 Campbell’s Rep. 453. Chitty on-Bills, 321. 14 East, 500; 15 East, 110. 5 Taunt. Rep. 7. 3 Campbell, 248, and note.
   Mr. Justice M'Lean

delivered the opinion of the Court.

This case is brought before this Court from the Circuit Court of Mississippi, by a writ of e,rror.

The plaintiff in the Circuit Court brought his action on a promissory note, and stated in his'declaration, that the defendant, “heretofore, to wit, on the second day of March, 1836, at New York, to wit, in. the district aforesaid, made a certain- note in writing, commonly called a promissory note, bearing date the day and year last aforesaid, .and then and there delivered the said note to Nelson, Carleton & Co., who are citizens of the state' of.New York; by which said note, the said defendant promised, by the'name and style of Covington and M'Morris, to pay to the said Nelson, Carleton & Co., or order, fórty-five hundred and sixty dollars and four cents, six months after the date thereof, for value received ; and the said Nelson, Carleton & Co. then and there-endorsed and delivered said note to the said plaintiff,” &c.

. The defendant pleaded the general issue ; and on the trial, the following note was offered in evidence.

$4,560 4. New York, .March 2d, 1836.

, Six months after date, we; the subscribers, of Columbus, state of Mississippi, promise to pay to the'order' of Nelson, Carleton and Co. forty-five hundred sixty dollars and four cents,'a.t New York, for value received. Signed, Covington & M'Morris.

The defendant objected to the nóte being given in evidence, on the ground that there was a material variance between it and the note described in the declaration. But the Circuit Court overruled the objection, admitted the note in evidence, and entered a judgment* for the plaintiff. The defendant excepted to'this ruling .of the Court; and the: question now is, whether there is error in the decision of the Circuit Court.

The note given in evidence was payable alt New York; but the place of payment was not stated in the declaration.

To maintain an action against the drawer of a note or bill payable at a.particular place, it is not necessary to aver 'in the declaration that the note, when due, was presented at the place for payment, and was not paid'; but the place of payment is a material part in the description of the note, and must be set out in the declaration.

The place of' payment regulates, the rate of interest, and in other respects may become' important. A note payable generally., is a very different instrument from a note given by,the same parties,mid for the same amount, payable at New York. We think, therefore, that the Circuit Court erred in admitting the note as evidence; for which causé the judgment is reversed; and the cause is rerhanded for further proceedings in the Circuit Court, where the plaintiff may move to amend the defect in his declaration.

This, cause came on to be heard on the transcript of the record from the Circuit Court of the United States for th.e Northern District of Mississippi, and was argued by counsel:' on consideration where-' of, It is now here ordered and adjudged by. this,Court, that the judgment of the said Circuit Court in this cause b.e, .and ilíe same is hereby, reversed with costs; and that this cause be, ¡and the skme is' hereby, remanded to the said Circuit Court for further proceedings to be had. therein according to law and justice, and in conformity to the. opinion of this Court.


text:
    Joseph Smith, Appellant, vs. The Chesapeake and Ohio Canal Company, Appellees.
    The legislatures of Virginia and Maryland authorized the surrender of the charter granted by those states to the Potbmac Company to be made to the Chesapeake and Ohio Canal Company, the stockholders of the Potomac Company assenting to the same. A provision was. made in the acts authorizing the surrender for the payment of a ce¿tain amount of the debts of th'e Potomac company by the Chesapeake and Ohio Canal Company, a list of those debts to be made out, and certified by the Potomac Company. — By the. Court.— This assignment does not impair the obligation of the contract of the Potomac.Cdmpany with any one of its creditors,nor pl'ac(e hirnin a worse situation in regard to his demand. The means of payment possessed by the old company are carefully preserved; and indeed gua- . rantied by the new corporation-; and if the fact can be established that some bona fide creditors of the Potomac Company were unprovided for in the new charter, and have consequently no redress, against the Chesapeake and Ohio Canal Company, it does not follow that they are without' remedy.
    ON appeal from, the Circuit Court of the United States for the county of Alexandria, in the District of Columbia.
    .In the Circuit Cóurt for Alexandria county, the appellant filed a bill to compél the Chesapeake and- Ohio Canal Company, to pay to him a proportion of the amount of a judgment obtained for a prize, drawn in a lottery authorized to be drawn by “ The Potomac Co.mpaiiy,” the. judgment having been' assigned to the claimant to the amount for.which the bill; was filed. The Chesapeake and Ohio Canal Company, under the authority of their act of incorporation, and of acts passed by the Legislatures of the states of Virginia and Maryland, had become entitled to, and'held- all the property,-rights, and privileges owned and possessed'by the Potomac Company under their charters ; and were subjected to the payment of certain debts dué by the Potbmac Company, according to the provisions of their’ charter,-and the acts of Assembly referred to.
    The whole case is fully stated in the opinion of the Court.
    - The case was argued by Mr. Semmes and Mr. Lee for the appellánts; and bv Mr. Key and Mr. Jones for the appellees.
   Mr. Justice M'Lean

delivered the opinion of the Court.

This is an appeal, in Chancery, from the decree of the Circuit Court of the District of Columbia.

The complainant represents himself to be a judgment creditor of the Potomac Company, which was incorporated in 1784, by acts of 'he Virginia and Maryland legislatures, for the purpose of opening and. extending the navigation of the Potomac river. That on the organization of the Chesapeake and Ohio Canal Company; in 1825, under a charter-obtained the preceding year, the Potomac Company surrendered its charter, and conveyed to.the new company all “the property, rights, and privileges by them owned.” That certificates of stock in the old company, and also its debts, were made receivable by the new company in payment for stock; and certain provision was made in behalf of those creditors who should not take stock in payment of their claims;,

And the complainant ¡states that the defendants have refused to take any step to pay his judgment, or to recognise his demand as coming within the. provision in behalf of the creditors of the Potomac Company. And he prays that an account may be taken, and that' such dividend as he. may be entitled to receive, may be decreed to him.

The defendants, in their answer, admit the obtainment of the judgment, but aver that it was founded on a claim against the Potomac Company for a prize drawn in .a lottery, under an act of the state of Maryland; which lottery was drawn-beyond the limits of that state, and within the District of Columbia, not only without authority, but. against law. And they insist that the lottery being void, the prize alleged to have been drawn by the- complainant or his assignor, can give no right of action at law, or entitle him to relief in equity.

The defendants also allege,' that the demand of the complainant was not included in the list of debts due by the Potomac Company, for which provision was made under the' new charter.

The statements in the answer.in regard to the'illegality of the lot-, tery, are not responsive to the bill; and there is no proof in the record where the lottery was drawn.

■ On the 7th January, 1810, the legislature of Maryland, by an act, authorized the Potomac Company, for the purpose of improving the navigation of the Potomac river, &c. .to raise a sum of' money not exceeding three hundred thousand dollars. But, as there is nothing in the record or in the evidence, which conduces to prove theft, the lottery was not drawn in pursuance-of the act, the Court cannot presume that it was so drawn, and thereby defeat the plaintiff's right. If the statements of the answer, in this réspeet, were proved, the judgment could interpose no obstacle to giving to them full consideration and effect. .

The complainant asks the aid of-a Court of Chancery to give effect to his judgment; and this no Court of Chancery will do, in violation of the established rules of equity.'

The second section of the act incorporating the Chesapeake- and Ohio Canal Company, provides that subscriptipns for the stock may be paid either “in the legal currency of the United States, or in the certificates of stock of the present Potomac Company, at the par or nominal value thereof; or in the claims of the creditors of the said, company, certified by-the acting president and directors to have been due for principal and interest, on the day on which the assent of the said company shall have been signified by their corporate - act, as herein before required; provided that the said certificates of stock shall not exceed, in the whole amount the sum of three hundred and eleven thousand, one hundred and eleven dollars and eleven cents; nor the said claims the sum of one hundred and seventy-five thousand eight hundred dollars?’

And in the twelfth section, it is provided, That it shall be the duty of the president and directors of the Chesapeake and Ohio Canal Company, so long' as there shall be and remain any creditor of the Potomac Company, who shall not have .vested his demand against the same in- the stock of the Chesapeake and Ohio Canal Company, to pay to such creditor or creditors annually., such dividend or proportion of the nett amount of the revenues of the Potomac Company; on an average of the last five years preceding the.organization of the said proposed company, as the demand of the said creditor or .creditors at this time may bear to the whole debt of one hundred and seventy-five thousand eight hundred dollars.” This sum, it was supposed, would cover the debts of the Potomac Company; and there is a' statement in the record showing the differént items which produced this aggregate amount. The ‘judgment of the plaintiff is .not included in this statement.

The liability of the defendants' to the stockholders and- creditors of the Potomac Company, arises wholly under their charter; and the extent of that liability is shown by the above extracts. They were bound, to receive the certificates of stock and debts of the Potomac Company, in payment for stock; and to pay a proportionate dividend to those creditors who should not subscribe for stock.

.The stockholders ..and creditors of the old company were named, so that thé liability of the new corporation was not only specific as to amount, but also as to individual creditors. The contract was made in their charter, and there is no allegation or pretence, that the defendants colluded with the Potomac Compapy to defraud either its -stockholders or creditors. The responsibility of the defendants, then, canfiot extend beyond the express terms .of their contract.

It is insisted that the twelfth section embraces all creditors of■ the Potomac Company; and requires that the average dividend paid by that company, the last five years preceding the surrender of its •charter, should be;paid to them. But that this is not the true construction is shown, by the further limitation imposed in thé same section. The sum of one hundred..and seventy-five thousand eight hundred dollars, being the amount of the debts, is made the basis on which the dividend is to be apportioned. The net average revenue for the five years being ascertained, it is easy to calculate what per cent, this would pay on the sum stated the total amount of debts; and the samé per cent, must necessarily be paid on the amount due the creditors respectively. This; is a very simple operation, and it shows very clearly that the sum sta- d was the maximum of debts to be provided for.

Four thousand dollars of the plaintiff’s judgment were assigned to Haley and Sukeléy; and it appears that George Sukeley was entered on the books of the Ohio and Chesapeake Canal Company, as a subscriber for four thousand dollars of stock, payable in débts of the Potomác Company But it seems-the company afterwards refused to receive the above assignment in payment for .the stock.

From, the fact of this subscription being , made, an inference is drawn, that the defendants considered themselves liable for the judgment of the plaintiff.

It is probable the. subscription bf Sükeíey was entered through mistake; and, it Seems, the. company refused to ratify it.. No presumption can be drawn from this circumstance which cári, in- any degree, influence the construction of the contract in the charter.

'; There can be no doubt that the states of' Virginia and Maryland, in' granting the charter of the. Chesapeake and Ohio Canal Company, had the power to authorize a surrender of the charter of the Potomac. Company, with the consent of the stockholders; and "to make the provision which they did make for the creditors of the company. ’ This assignment does not impair the obligation of the contract of any creditor of the company,'nor place him in a worse situation in regard to his demand. The means of payment possessed by the old company are carefully preserved, and, indeed, guarantied by the new corporation. And if tbe fact can be ésta-' Wished,- which is denied .by the defendants, that some bona fide creditors of the Potomac Company were, unprovided for in the new charter,.and consequently have no redress against the defendants, it does not follow that they áre without remedy.-

It may he that all . the creditors whose démands make up the sum of one hundred and seventy-five' thousand eight hundred dollars, have not claimed stock in the hew company, or the proportionate dividend secured to them. But if they have not asserted their right to stock or the dividend, they máy -yet claim either, and the defendants axe hound to satisfy their demand.

Upon the whole, Wq are of the opinion, that the defendants are not liable under their contract with the Potomac Company, to pay the judgment of the plaintiff; or to pay him a proportionate share of the nett revenue of the Potomac Company stock, under the twelfth section: the decree of the' Circuit Court, which dismissed the bill, is, therefore, affirmed.

This cause came on to he heard on the transcript of the record from the Circuit Court of the United States, for the District of Co-, lumbia, holden in and for the county of Alexandria, and was argued by. counsel. On consideration whereof, it is now hero ordered and decreed by this Court, that the decree of the said Circuit Court,.in this cause he, and the same is hereby, affirmed, with costs.


author: Mr. Chief Justice Taney

text:
    John S. Mitchell, Executor and Devisee of Andrew Mitchell deceased, Plaintiff in error, vs. Robert Lenox and others, Defendants in error.
    The fourth article qf the Constitution of the United States, which declares that “ Full faith and credit shall be’given in each state to the public acts, records, and judicial proceedings of every other state,” cannot, by any just construction of its-words, be held to embrace an'alleged error in a decree of a state Court, asserted to be in collision with a prior decision of the same Court, in the same case.
    IbJ error to the Court for the Correction of Errors, of the state of New York.
    Mr. Crittenden moved to dismiss this writ of error on the ground that the Court had no jurisdiction.
    This motion was opposed by the counsel for the plaintiff in error.
   Mr. Chief Justice Taney

delivered.the opinion of the Court.

This case is brought here by a writ of error to revise the decree of the Court for the Correction of Errors for the state of New York,

It appears that a bill was filed in the Chancery Court of New York, by Andrew Mitchell,,the plaintiff’s testator, against Robert Lenox and others,-in order to obtain an account of a certain estate of the complainant, which he alleged that he had assigned and delivered to the^ upon certain trusts. The defendants, among other things, insisted that the said estate of; the complainant had after-wards, with his consent, been assigned tb certain other trustees, upon the same trusts expressed in the original deed to them. It is unnecessary to state the nature of the controversy more fully for the purposes of this motion. The bill it seems-came to final hearing before the vice-chancellor of the first circuit of the state of New York, who dismissed the bill without prejudice to the complainant’s right to make the same defendants parties to a'new bill, if he should think proper to file one against the second trustees or the survivor of them. The complainant appealed from this decree to the chancellor, who 'affirmed it; and he appealed from the chancellor’s decree to the Court for the Correction of Errors, and that Court 'affirmed the chancellor’s decree.

The plaintiff’s testator thereupon filed a new bill against the same-defendants, in which he made the survivor of the second set of trustees also a party defendant; and upoii the final hearing, this second bill was dismissed by the chancellor, and his decree was afterwards affirmed by the Court for the Correction of Errors. It is from this last decree that the writ of error to this Court is brought.

It does not appear from the record that any of the questions enumerated in the twenty-fifth section of the act of Congress, of 1789, arose in the Court of Errors; and consequently this Court is not authorized to review its judgment. It has indeed been contended by the plaintiff in error, that the second decree is in collision with the first; and that in thiis respect it violates the first section,of the fourth article of the Constitution Of the United States, which declares that “Full faith and credit shall be.given in each state to,the public acts, records, and judicial procéedings of every other state.’* _ Now if it were admitted that the second decree is in collision with the first, (which we certainly do not mean to say is the case,) yet the article of the Constitution aboVe quoted, cannot; by any just con-, struction of its,words,be held to embrace an error of that description, nor give this Court the right to review the decree.

The writ of error must therefore be dismissed for want of jurisdiction.

This papse came on to be heard on the transcript of the record of the Cotpt of Chancery of the state of New York, returned with the writ of error in this case, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that this writ of error to the Court of Chancery of the, state of New York, be, and the same is hereby, dismissed for the want of jurisdiction; and that this cause be, and- the same is hereby, remanded to the said Court of Chancery.