text:
    John Tompkins, surviving partner of John Tompkins and Adam Murray, trading under the firm of Tompkins and Murray, Complainants and Appellants, v. Leonard Wheeler et al., Defendants.
    A bill to set aside a deed of assignment, made by an insolvent debtor, for the purpose of securing the payment of his debts to certain enumerated creditors, to the exclusion of the complainant, also a creditor of the assignor, and of others.
    A debtor may lawfully apply his property to the payment of the debts of such creditors as he may choose to prefer; and he may elect the time when it is to be done, so as to make it effectual; and such preference must necessarily operate to the prejudice of creditors not provided for, and cannot furnish any evidence of fraudulent intention.
    The case of Marbury v. Brooks, 7 Wheat. 556, and 11 Wneat. 78, cited.
    When a deed of assignment is absolute upon its face, without any condition whatever attached to it, and is for the benefit of the grantees, the presumption of law is that the grantees accepted the deed.
    The delivery of a deed of assignment for the benefit of creditors to the ch rk, to be recorded, may be considered as a delivery to a stranger for the. use of the creditors; there being no condition annexed to the assignment, making it an escrow.
    After the assignment, the creditors fir whose benefit the same was made, neglected to appoint an agent or trustee to execute it, and the property assigned remained in the hands of the assignor. ■ The property consisted principally of choses in action, which the assignor went on to collect, and .divided the proceeds among the creditors; under the assignment. No one of the creditors was dissatisfied;' and at any time the creditors could have taken the property out of the hands of the assignor. Held, that, leaving'the property in the hands of the assignor under these circumstances, did not affect the assignment; or give a ri'ght to a creditor not preferred by it, to set it aside.
    APPEAL from the Circuit Court of the United States for the district .of Kentucky.
    In the Circuit Court of Kentucky a bill was filed, on the equity side of the Court, for the purpose of setting aside a deed of assignment or mortgage made by Leonard Wheeler, for the purpose of securing certain of his creditors, in preference to the complainant, who was also a creditor..
    At the November term, 1837,.of the'Circuit Court, the complainants .had obtained certain judgments against, the defendant Wheeler; and on the application of the defendant, it was agreed that no executions should be issued upon those judgments until February, 1838. The debt on which the judgments had been obtained amounted to twelve thousand dollars, which had been purchased by the plaintiffs for one thousand dollars; the defendant having failed inJL814,'and this being one of the debts due by him. at the time o-f his failure. He afterwards entered into business in Kentucky, contracted a large amount of debts, and obtained.some property.
    Five days before the time when the - complainant had a right to issue execution on the judgments,.Leonard Wheeler executed. a general assignment or mortgage of all his property. The assignment provided for the payment, in the first place, of all his debts contracted since his failure, in 1814, giving to them a priority or preference, “ as all his means and effects had been accumulated by the.credit given to him in Kentucky; the same being divided into two classes.” It provided that among his old debts, out of the. surplus of his estate,- which was expected to remain after the first and second class of preferred debts had been satisfied, that certain debts, due by him in 1814, the judgments in favour of the plaintiffs not being aipong them, should be paid; and not believing the effects assigned would extend beyond the payment of these debts, no others were designated. ' The assignment then proceeds to assign and transfer all the property and effects to the creditors of the first and second class, in trust to pay the debts according to the preferences and classification on the same; giving to the said creditors, or a majority of them, power to nominate and appoint an agent, attorney, or trustee, to carry the purposes of the instrument into full effect..
    On the 15th of February, 1838, writs of fieri facias were' issued on the judgments, which were returned by the marshal “nulla bona.”
    The appellant filed a bill in the.Circuit Court, praying that the deed of assignment executed by Wheeler should be decreed fraudulent and void, as it regards the complainant. The bill also alleged acts done by the defendant Wheeler for the concealment of property, and also the nominal creation or increase of debts which were included in the preferences made by the assignment, and other acts of fraudulent collusion : and also, it alleged that the property assigned had been left in the hands of the assignor, and the creditors had never appointed an agent, or trustee, who had taken charge or direction of the property assigned. In the opinion of the Court, delivered by Mr. Justice Thompson, other facts are stated, which, are taken notice of by the Court.
    The Circuit Court made a decree dismissing the bill, and the complainants prosecuted this appeal.
    . The case was submitted to the Court, on a printed argument, by Mr. Ogden, for the appellant; and by Mr. Crittenden, who presented to the Court the printed argument of Mr. M. C.- John-, son, for the appellee..
    Mr. D. B. Ogden, for the appellant.
    The right and power of a debtor to give a preference to some bona fide creditors o,ver .others, is not- denied. But such, preferences are no favourites in a Court of Equity, in jvhich «equality is equity;” yet, inasmuch as such a deed is good and valid at law, equity follows the law, and will support it.
    But a Court of Chancery will look narrowly into all the circumstances of the case; and if they find the deed tainted in the smallest degree with fraud, <they will declare it void. A ¡.preference may be given to some creditors over others; but, in giving that preference, the debtor must act boná fide. Independent of the questions of law.arising in this case, there are Strong circumstánces to show that, in making this assignment, the defendant, Wheeler, did not act with good' faith, towards the complainant. He.obtained from him an agreement to postpone issuing any executions upon his judgments until after the first of February; it was in- bad faith for him to avail himself of this postponement, thus obtained, to place all his property out of the reach of an execution. It is evident that this assignment was made to -defraud and injure the Complainant, and to prevent his recovering his debt.
    'Another strong circumstance against the fairness and good faith of this assignment, is the. following: The -assignment directs that an old. debt, due frorn'him to F. & J. Sexton, of New York,' for the sum of three thousand one hundred and twenty dollars, with-interest at the rate of six per cent, from August, 1814, shall be paid; and it also recites that this debt has been assigned to Norman Porter, who now holds the same.
    Now, this Norman Porter, it appears throughout this record is one of the most intimate friends of Wheeler, and one of those favourites for whom he wished to provide in preference to the complainant. Porter’s answer states, that he paid three hundred and seven dollars'and fifty, cents, Kentucky money, for the debt of F. & J. Sexton, in January, 1838. He began to negotiate for it in December, 1837. He purchased it without any arrangement with or suggestion from Wheeler. He had heard of the prosecution by Winter, and of Wheeler’s intention to assign his property for the benefit of his other creditors, to prevent Winter from recovering the amount of his judgments; and he therefore bought up this debt of the Sextons. The amount of principal and interest on this debt, calculating the interest at six per cent, from August, 1814, to November, Í837, is seven thousand four hundred and twenty-two dollars and forty cents; which this Mr. Porter receives, and for which he paid but three hundred and seven dollars and fifty cents.
    The assignment purports to convey his property directly to the creditors named in it. There is no proof that it was delivered to any of them; and it is in proof that several of the creditors nevep knew of its existence.
    Wheeler continued in possession of the property; it never was delivered over; this of itself is evidence of fraud. 1 Peters, 356; 4 Mason, 321; 3 Maul. & Selw. 371; 15 Johns. 571; 4 Bibb, 445, Kentucky Reports.
    The assignment gives the creditors power to name a trustee to take the property; no such trustee has ever been appointed. The sale of some property to Putnam was evidently made for the mere purpose of. preventing the judgment creditor from recovering his demand; and is therefore void. Cowp. 434; 1 Burr. 474; 1 Campbell, 333.
    This assignment, the Court will recollect, was made but four or’ five days before the time during which execution was to.be stayed expired, and the negotiation which brought about the assignment of this debt of the Sextons, was not entered upon by Porter until December, long after the judgments were entered: and Porter himself admits that he knew of the intended’assignment by Winter, and that their debt was to be provided for; It appears that a more fraudulent attempt than this to give a preference over a bona- fide creditor rarely occurs. 7 Peters, 605.; 2 Gallis. 557; Pickering, 71.
    Mr. Johnson,, for the appellees.
    The assignment of Wheeler to his creditors is charged to be fraudulent, because.it was made by Wheeler without the knowledge or assent of the creditors therein named, and was never delivered to, or accepted by them.
    It is contended that the fact is otherwise. None but F. L. Turner failed to give asserit to it; and the mortgage funds can, under no contingency, pay his debt; and his. interest in them amounts to nothing. As to all who do not admit that they did not assent, the presumption of law is, that they did assent, as the deed was beneficial and had no condition, attached. See Halsey v. Whitney, 4 Mason, C. C. R. 206; Wheeler v. Sumner, 4 Mason, C. C. R. 183.
    ■ This presumption particularly applies to all the non-residents, as to whom the suit is dismissed. . All others have answered, or by agreement are considered as having answered; assenting to the mortgage, or stating that they were paid before proc'ess was served.
    It may not appear from the answers of some when the assent was given, but according to the practice in United States’ Courts, a matter alleged but not answered must be proven on final trial. See Young v. Grundy, 6 Cranch, 52. If a. more specific answer had been desired, exceptions should have.been taken. All' exceptions to- insufficient answers are expressly waived by agreement.
    In . regard to delivery, it is well settled, that "if a deed be delivered-to a stranger for the use of .-the grantee,-without any condition annexed making it an escrow, it is a delivery to the grantee. Sheppard’s Touchstone, 58. In this case the deed was delivered to the clerk of the Fayette County Court, for the use of the grantees, to be recorded in his office. Jt has also been decided, that if a 'deed of feoffment be made to four, but only delivered to three of them, and livery of seisin made tq the three for the use of all, without the assent of the fourth, and when it comés to his knowledge, he disagrees to it, still the freehold is in him, and so remains, until disclaimer in Court; and so if a .deed be made of goods and chattels, and be delivered to a stranger for the use of donee, there the goods and chattels vest in donee before notice or agreement; but in this case donee may make refusal in pais, and by such refusal the interest is divested. See Butler and Baker’s case, 3 Coke’s Reports, 26, 27. See also the case of Doe on dem. Garnons v. Knight, 5 Barn. & Cress. 671, for a full argument on the effect of delivery to a stranger, and for a collation of all the authorities. According to these principles, so far as the vesting of legal title is concerned, it matters not whether the grantees were consulted or knew of the deed or not; tlie property embraced in it was vested in .them by force of the delivery to the clerk for their use until their disagreement.
    In cases of deeds of trust, where the property is conveyed to a stranger, for the benefit of creditors, and these creditors not parties to the deed, it has been decided by this Court, in Marbury v. Brooks, 7 Wheat. 556 ; and Brooks v. Marbury, 11 Wheat. 78; Brashear v. West, 7 Peters, 608, also, in the cages of Halsey v. Whitney, 4 Mason’s C. C. R. 206; and Wheeler v. Sumner, 4 Mason’s C. C. R. 183, that the assent of the creditors is not necessary to the validity of such a deed ; and in the case of Marbury v. Brooks, supra, an- assent after a creditor had attached the goods was decided to be sufficient to make the deed valid from its execution.
    The rule, that in absolute sales of chattels the possession remaining with the grantor, is a fraud pep'se, has been fully recognised in Kentucky; but it is equally well settled, that this rule has no application to mortgages and deeds of trust. See 5 Littell’s Reports, 243; 1 J. J. Marshall, 282; 3 J. J. Marshall, 453. In Snyder v. Hitt, 2 Dana, 204, the Court say that the possession of the mortgagor is not fraudulent, and, in general, no .evidence of fraud. This Court, in United States v. Hooe, &c., 3 Cranch, 73, decide, that where the deed provides for the grqntor retaining possession, it is not fraudulent, and in 1 Peters, 449, the rule is held only to apply where the possession of the grantor is inconsistent with the deed.
    The reason of this distinction, in Kentucky, is two-fold. 1. The possession of the mortgagor is not inconsistent with the deed: and, 2. All deeds of mortgage and of trust are required to be’ recorded.

      The equity of redemption, or resulting trust of grantor, and his' interest in freeing himself from debt, by making the’property as available as possible for that purpose, are such actual'and legal interests in the .property,, as all Courts will regard and'protect, and are such interests as render it not only consistent' with the transaction, but highly beneficial to all parties, that the debtor, if honest and capable, should remain in the possession of the encumbered property. He is the person best acquainted with the property and its capabilities, and his interest perfectly coincides with that of the creditors, in making it as valuable as possible. •
    There can be no doubt that, the assignment in question is. not an absolute sale, but a mortgage or deed of trust. . The' property is assigned for the purpose of paying the debts.' Upon their payment, the property, by operation of law, results to the grantor. But, by whatever name it may be called, it is, in substance , and reality,a mortgage; and Wheeler has, in the property, all the interests which are above enumerated as appertaining to the mortgagor: and there is, consequently, the same consistency of his possession with the deed that there could be were it a mortgage, in the most nicely technical sense. In the deed it is provided, substantially, that he shall remain in possession, managing the fund, until the grantees, by agent or otherwise,'take possession.
    In Kentucky, all. mortgages and deeds-of trust, whether of real or personal estate, on legal or equitable interests, are required to be recorded in offices of the County Courts. Brown and Morehead’s Statute Law of Kentucky, vol. i. pages 448, 449; also, see Session Acts of 1836, 1837, page 255; also, Session Acts of 1838, 1839, page 96. These statutes-would change ¿the rule as to possession, even had it previously existed* by destroying the reason of it. In regard to chattels, the only ownership the world can know, is the continued possession. Being capable of transfer, by th.j most seeret contracts, without the.least solemnity or notoriety, purchasers and creditors could be deceived and defrauded.without limit, did not the law provide for their. security some visible test of ownership. The continued possession is the test'as to chattels, but it is not of'real estate, the title-deeds being the evidence, and, accordingly, we find the rule does not extend to real estate. In Kentucky, the notice of encumbrances is the record, and purchasers and creditors are completely guarded against being defrauded by mortgages; &c., by an easy reference to the office of the County Court.
    The property is not, however, of the character to which the rule applies. ' 'Consisting of choses in action, they are incapable of visible possession, and pass by assignment.- So this Court held in the case of Spring v. The South Carolina Insurance Company, 8 Wheat. 268.
    If a debtor gives up all he has, to bona fide creditors, and such all he has provided for .are admitted to be, and he reserves no right, power or benefit to himself, it is impossible that this can be fraudülent. The law not only does not condemn, but approves and sanctions it. - See the luminous. opinion of Justice Story in the case of Halsey v. Whitney, 4 Mason C. C. R. 207; and the numerous authorities collated and ably commented on.
   Mr. Justice Thompson

delivered the opinion of the Court.

This is. an appeal from the Circuit Court of thé United - States, for the district of Kentucky.

The bill filed in the Court below, was for the purpose of setting aside af certain, deed of assignment, made and executed' by the defendant, Wheeler, for the purpose of securing to certain enumerated creditors the avails of his property; to' the exclusion of the complainant; and that the complainant may be decreed to have satisfaction of his judgments set- out in' the bill, out of the property conveyed by the deed.

The bill sets out, that at the November term of the Circuit Court of the United States, in Kentucky, in the year 1837, the complainant recovered two judgments against Leonard Wheeler; ■one-for the sum Of four thohsand dollars, with interest, from the 21st of February, 1814; and the other Tor eight-hundred and ninety-one dollars and fifty-three cents, with intereát for the same time; upon which judgments executions were not to issue until the 1st of February, 1838: at which time executions were duly issued, and put into the hands of the marshal of the district to be executed; upon which the marshal'returned, that he. found no property of which to make the money on the executions.

The bill further states, that on the 27th of January, 1838, the said Leonard Wheeler, by deed of trust or assignment, made a ■ conveyance to certain of his preferred and specified creditors (of which the complainant was not' one) of certain property therein specified,'to pay and discharge certain specified debts, which'deed was duly acknowledged and recorded in the proper county; and the bill charges, generally, that this deed is fraudulent and void. It particularly charges, that the deed was made without the •knowledge, privity, or assent of the creditors named therein, and who áre the parties to whom the deed • is- given. That the deed was never delivered to, nor accepted by the grantees. That it was made with intent to deceive and defraud his- just creditors, who were not' included in its provisions. That the possession of the property, conveyed by said- deed, was retained by the said Wheeler, and never delivered to the parties of the second part, or any one of them. That the deed was lodged in the clerk’s office for record after the rendition of the complainant’s judgments, and but a short time before he was authorized to issue execution upon his judgments.

■ It further charges that the sale of the goods to Joseph Putnam, one of the creditors named in- the deed of trust, was fraudulent, and without any valuable consideration; and that the business was afterwards cohducted in the name of the said Putnam, but •for the use in whole or in part of.the said Wheeler.

It also charges that Norman Porter," another of the preferred creditors, had money in his hands belonging to the said Wheeler, and to be used for. his benefit; and that the note mentioned in the said deed of three thousand one hundred and seventy dollars, was purchased by said Porter for Wheeler’s benefit, and with his money.

• The bill likewise prays, that' Abei Wheeler, one of the preferred creditors, m^,y answer and state particularly, whether he has at any time lent and advanced to Wheeler money or other property, and whether he now holds any note, or memorandum, or other evidence of debt against him.

■The bill prays that the said Leonard Wheeler, and the above mentioned preferred creditors, may answer specially and particularly to the several interrogatories' put in the bill, in reference to the transactions between them severally and respectively.

The several answers of Leonard Wheeler, Porter, Putnam, Swift, and Abel Wheeler, contain a full and explicit denial of all the charges contained in the bill, tending in the least manner to -sustain the allegations of fraud or collusion, or any secret or unfair transactions between them,- or either of them, with Leonárd Wheeler. And there is no proof offered to sustain these allegations ; they may therefore be dismissed as wholly unsupported.

The bill ■ calls upon the 'said Leonard Wheeler to state how and to whom he -delivered the deed of trust; in answer to which he states, that every creditor provided for by the deed, was a’ real and bopá. fide creditor. That he consulted with a number of his creditors,"naming them, before making the deed';, all of whom approved'of it; and that he knows of none .who disapproved of it, or rejected the benefit of. its, provisions; and some of them have accepted of it ip writing, which appears by the exhibits annexed to the answer. ■ That, being satisfied with the propriety of the measure, .he made and executed the deed, and left it in the proper office, to be recorded for the use of his creditors. He admits that the funds, mentioned in the deed of trust, remained in his -possession; and that the creditors have never availed themselves of the privilege-of .appointing-a trustee; having confidence, as he presumes, in fhe correctness of his management' of the business. And he further states, that he has gone bn. in collecting the choses ip.action, and payingpvér the proceeds to the creditors, according to the provisions of the deed of trust.

The answer of -Wheeler with respect .to the delivery Of the deed, and the possession and.'mánagement of the funds, is corroborated by the answers of a number of the creditors, who are made parties, and called upon to answer on these points. -They say, that they were Consulted before the deed was executed, and approved of it then; and accepted it when made. That no trusteé has been appointed, because they had full confidence in Wheeler, and desired him to continue in-the-management of the business.

There are several amended bills, with the answers ’ thereto, bringing up some new matters, but riot, of sufficient importance .to require any special notice. The above Statement of the bill and answers presents all the material questions which arise'upon the merits of this case.

It is deemed unnecessary-to'notice the objections made to thé jurisdictioruof the Court below, either on the ground that Elisha I. Winter, the real party in - interest,-should, have been made the party complainant in this suit; or that there'is a want of proper parties, defendants, to enable the Court to make a.decree upon the merits. The conclusion to "which we have- arrived supersedes the necessity of considering these questions.

Although the right and power, of ¿-debtor , to give a' preference to some of his boriá.ñde creditors, to the exclusion of others, has not been denied on the part of the 'complainant'; yét, it haá been urged, in argument, that such-preferred creditors are no favourites in a Court of Chancery, where it is said equality is.eqúity; and that a Court of Chancery will look narrowly into, állthe circumstances, arid if it is forind that- the deed is tainted in the smallest degree with fraud, it will be declared void.. ■ And it has been insisted, that in the present case there • are strong Circumstances to show that in-making this deed of trust, the defendant Wheeler did not act iri gbod faith towards the complainant. That he obtained from him an .agreement to postpone! issuing executions upon his judgments until after the first of February; and that á few days ' before that time he made the assignment in’question,'So as to put all .his property out of the reach of trie executions-5 and that this was in. bad faith, which ought riot to'receive'trié Sanction of a Court of Equity. It may he observed, iri the first place; that there is no evidence of any-deception practised by Wheeler, lb lull’ him to ■ sleep, or procuré' any delay, in issuing executions on the judgments. It was done in the ordinary course Of judicial proceedings. And-if the principle he sound; that a débtor^may lawfully- apply his property to thé; payment of the debts of such creditors as he may erioose to prefer, hé may certainly elect the time, when it is to bé done, so- as to .make it effectual. And’ such preference must necessarily-operate to the prejudice of creditors-' not provided for; and cannot' furnish' any evidence, óf a- fraudulent intention. But the circumstances of the present, case are suph as, not ' only to remove all' ground for any charge of fraud, but even .of injustice or unfairness in. the. conduct of Wheeler Although it . may be admitted ■ that John. Tompkihs is properly m.ade complainant, yet it is manifest from, the record that he is a mere nominal party, and that Elisha I. Winter is the real party in interest. This is shown by the answer of Wheeler* and proved by the testimony of William Fellows; who swears that in the latter part of 1836, or the beginning of 1837, Winter, through his agent, applied to him, to purcháse the claim of Tompkins,, which had been sent tp him for collection. That he' offered one thousand dollars for it, which was not at that time accépted. That in the summer of 1837; Winter himself made the same offer which his agent had made; and again, in the fall of 183.7, he renewed the offer of one thousand dollars, and expressed his opinion of Wheeler’s condition, when, with the opinion of some others, who .he supposed. knew Wheeler’s circumstances, he in the month of October, 1837, sold the claim to Winter for one thousand dollars; believing that he was^purchasing it for the benefit of Wheeler. That, a few days after the sale, he received a written request from Winter not to" let it be known that he had the control over the claim.'. Thus we see great anxiety in Winter’ to purchase a claim against a man embarrassed and in failing ' circumstances; and the consideration paid for it shows that the claim .must have been considered almost desperate. Only one thousand dollars given for a claim which, by the judgments stated in the complainant’s bill, including interest, amounted to between eleven and twelve thousand dollars. " These circumstances, independent- of the statements in Wheeler’s answer, are calculated td cast some suspicion upon the conduct of Winter, and to justify tire inquiry, whether, he comes into Court with clean hands, and can justly reproach Wheeler with bad faith and unfairness towards him. Wheeler’s circumstances were extremely embarrassed, if not desperate, and he found impending over him two judgments amounting to nearly twelve thousand dollars, in the hands and under the control of Winter; who he had certainly no reason to believe was friendly to him; and which judgments, if they could have been- enforced to their full amount, would have swallowed up a great proportion of his property. Was he not, under such circumstances, authorized, by every principle of justice and honesty, to • secure as far forth as he could his bona fide creditors ? That- the debts of all the creditors preferred in the,. deed of trust, are bona fide debts, is fully established; not only, by-the proofs,-but is admitted on the record, by an agreement whiph, among other things, states, “that the genuineness of the debts provided, for in Wheeler’s assignment will not. be contestéd 'or' called in. question on the argument.?’

That a-, debtor has"a legal right .to prefer one. or more.of his creditors over others,'when the transaction is boná fide, is hot an open question in this Court. That point was settled in the- case of Marbury v. Brooks, which came twice before the Court under ■circumstances somewhat different, and is reported in.7 Wheat. 556, and in 11 Wheat. 78. That this assignment was a bond fide transaction'between Wheeler and his preferred'creditors, is clearly established by the proofs. Every allegation in the bill, .suggesting, fraud or collusion, is fully.' met and denied by the several answers, and is wholly unsupported by any proofs.

But several objections-have, been taken to the legal effect and operation of this.deed, on other grounds than that of fraud.

That it was made by Wheeler without the knowledge or consent of the creditors therein, named.- That it.was never delivered to or accepted by the creditors. That possession of the fund was .retained by Wheeler, and no trustee appointed áccórding- tó the provisions of .'the deed.

. Some of these objections are npt founded in fact. -It is true that it does not áppear that' all the creditors had any knowledge of. the deed before it was executed. '-But if does-áppear fromthe answer of a number of the creditors named in- the deéd,- that they were .advised' of the necessity of Wheeler’s securing them, and informed of his intention to secure them before the deed was executed, apd approved of it; and accepted the benefits of its provisions'; and since that time hpve been paid their debts, in full. And there is no evidence that' any one ■ dissented. F. S. Fuller says, he was never consulted' with about making the deed, or informed of it before its execution; and that he has never-accepted of its provisions. But he does not say that he has. ever refused to accept of the provisions in his favour; and he may not therefore have precluded himself, from still accepting. This deed is absolute upon its face, without any condition whatever attached to it; and being for the benefit pf' the grantees., the presumption of law is, in the absence of all evidence to the contrary, that the. grantees accepted the deed. In the cáse of Marbury v. Brooks, it is said - by the Court, that an assignment for the benefit/of preferred creditors is valid, although their assent is not given at the time .of it„s execution; if they subsequently accept in terms, or by ; actually receiving the benefit of it: Deeds of trust, say. the Court, 11 Wheat. 96, are often made for the benefit of persons who are absent,.and■ even for persons who are not in being; whether they are for the payment.of money or for any other purpose, and no expression of the assent of the persons for whose benefit they afe made has been required,-as preliminary to the vesting of the legal estate in the trustée; such trüsts have always been executed on the idea that the deed was complete when, executed by the parties to it. The omission of creditors to assent to- the deed, or. to claim under.it, may, under suspicious circumstances, afford some evidence of fraud. But real boná fide creditors are rarely un- . willing to receive, their debts from any hand that will-pay them. It is not .true'that the deed remained in the possession, of Wheeler; it was. sent to the clerk’s office to be 'recorded ■ It was, of course, •placed in the hands of the clerk, to be recorded for the uses and purposes expressed, in the deed,.and of course for the benefit of theCreditorsnamedin.it. It was put out of the possession and control-Of the grantor. The grantees in the-deed are numerous, and all could not have -the actual possession of it. It is laid down in Sheppard’s Touchstone, 58, that if a. deed be delivered to a stranger, for the use of the grantee, without any condition an- . nexed", making it an escrow, it-is a delivery to the grantee. The delivery to the. clerk to be recorded, may well be considered as falling withinthis-rule. This principle is'fully recognised in the case of Doe v. Knight, 5 Barn. & Cress. 692, that a delivery of a deed to a third person, for the use pf the party in whose favour it is made, where the grantor parts with all control over the deed, is .effectual, and operates from the instant of such delivery.

If the fund had. remained in the possession .of Wheeler for his own benefit, it might have cast a suspicion upon the fairness of the transaction; but there is no proof.of any such object or design, or. of any fact from which an inference of mala tides can be -drawn: but on the contrary, the object of his continuing in the possession o^ the property is satisfactorily accounted for by the circumstances of the case. It consisted principally, of unsettled accounts,, and choses in action, which he was much more competent to settle than a stranger could have been. It was, therefore, for the benefit of the creditors that he continued to settle up these accounts and pay over the money to his creditors, as the proofs show that he did. This wai by the express consent of some of the-creditorá, and the presumed consent oi all, as no dissent,or complaint.appears to have been made by any; and no one had any right to complain but the parties who were to receive the benefit of the assignment. This possession wá's held ,at the will and pleasure of the creditors, which they could have withdrawn at any time, if dissatisfied with the management of Wheeler; and this was a substantial compliance with that part of the assignment which relates to'the appointment of an agent, or trustee, for the purpose of executing and fulfilling the trusts and purposes of the assignment. The creditors were, of course, to be the judges of the .fitness and competency of such agent, or trustee; and they were the only parties interested in the faithful discharge of his duties. No formal appointment was necessary; an express or implied assent of the creditors to Wheeler’s acting as agent, or trustee, was all that could be reopfired, according to the fair interpretation of the assignment

We are, accordingly,, of opinion, that the decree of the Circuit Court, dismissing the bill without prejudice, be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice M'Lean

license: Public Domain

text:
    James S. Brander, and Hugh L. M'Kenna, Plaintiffs in error, v. William E. Phillips, and Henry Bell, trading under the firm of William Phillips and Company, and Rodah Horton, and Nathaniel Terry, Defendants in error.
    B. and M‘K.,'merchants at New' Orleans, were the factors of P. and Company of Huptsvillé, Alabama, and made advances on cotton shipped to them. In August, 1.634, P. and Company were indebted to B. and M‘K.> one thousand three hundred' and fifteen dollars; and Williams, the- agent of B. and M‘K., agreed'with P> and Company, that B. and M‘K. would advance eight thousand dollars on bills tobe drawn between the 20th of April, and the.31st;of July, 1835, by P. and Company, and ■ any two of six persons named, among whom were Horton and Terry, two of the • defendants in this suit. Before July 31st, 1835, several shipments of cotton were made to B. and M‘K., by P. and Company, and severai bills were' drawn by them" jointly with Horton and Terry, and by others, without'them; all' of Which .were accepted by B. and M‘K. .These bills, with the advances before ma'dé, amounted to twenty-nine thousand seven hundred and ninety-five dollars', and the proceeds of the shipments were' twenty-two thousand four. hundred and sixty-dollars. B. and M‘K. applied Jjheee proceeds to the liquidation of the bills drawn. liy E, and Company, to the exclusion of those drawn by them jointly with Horton and Terry; and, as these bills .exceeded the proceeds of the cotton, they brought an action on a bill drawn June 4th, -1835, by P. and Company, and Horton and Terry,-amounting to three thousand dollars. The Circuit Court instructed the jury, that if they believed from, the .evidettqe, that at the maturity of .the bill, B. and M‘K. had sufficient funds of P, and Company to pay the bill, and Horton, and Terry to be accommodation drawers, and securities only, then, in the absence of any instructions from P. and Company in regard to the application of the funds, B. and M‘K. were bound to apply tliem to pay the bill, and could not hold them to pay a bill draw» on them by P. and Company only, which had been accepted by them, and was not then due. Held, . that the instructions of the Circuit Court were correct.
    When a factor makes advances, or incurs liability on a consignment of goods, if there be r.o special agreement, he may sell the property in the exercise of a sound discretion, according to general usage, and reimburse himself out of the proceeds of the Sale, and the consignor has no right to interfere. The lien of the factor for advances and liabilities incurred, extends not only to the property consigned, but, when sold, to the proceeds in the hands of the vendee, and the securities therefor in the hands of the factor.
    The acceptors of .the bill of exchange having, when the bill became due, funds of the drawers in their hands sufficient to. pay the same, the liability of the accommodation drawers was as completely, discharged, on the payment of the bill, as that of the principals.

      IN error to the Circuit Court of the United States for the district of South Alabama.
    The case, as stated ih the opinion of the Court, was as follows:
    “Brander and M'Kenna,in 1833,1834,1835, were commission merchants at New Orleans, and acted as factors and agents for William E. Phillips and Company, of Huntsville, Alabama,, in the sale. of cotton, and made advances thereon. On ali sales they were to receive two and a half per cent, for commission, and the same amount for advances.
    In August, 1834, Phillips and Company were indebted to Brander and M'Kenna, in the sum of one thousand three hundred and fifteen dollars and fifty-seven cents, for advances. On the 15th of the same month., John Williams, agent for Brander and M'Kenna, agreed to advance.Phillips and Company tie sum of eight thousand dollars on bills, to be drawn between the 20th of April, and the 31st July, 1835, by them, and ány two of six persons named; among whom were. R. Horton, and-N. Terry, two of the. defendants in error.-
    Between the 15th of August, 1834, and the 31st of July,'lS35, several shipments of cotton w,ere made to. the plaintiffs by the defendants ;>and several bills-were drawn by them, some jointly with Horton and Terry; and others without them; all of which were accepted by the plaintiffs.
    These bills, including the advances previously made, amounted to the sum of twenty-nine thousand seven hundred and' ninety-five dollars and sixty-five cents. The proceeds of the shipments of cotton to meet these advances, amounted to the sum of twenty-two thousand four hundred and sixty dollars and forty-three cents'.
    ■ The plaintiffs applied the proceeds of the-cotton to the liquidation of the bills drawn by Phillips and Company, to-the exclusion of. ihose drawn by them jointly with Horton and Terry; and as the 'acceptances exceeded the proceeds of the cotton, this action was commenced on a bill due .4th June, 1835, for three thousand dollars drawn, by the defendants.
    On the trial, the Court instructed the jury that, if they believed from the evidence that, at the maturity of this bill, Brander and M'Kenna had sufficient funds of Phillips and Company in their hands to pay it, and believed Horton and Terry to be accommodation drawers and'securities only, and knew this at the maturity of- this bill, then; in the absence of any instructions from Phillips and Company, in regard to the application, of the funds, Brander and M'Kenna were bound to apply them to-pay this biH, and could not hpld them to meet the payment of a bill drawn on them by Phillips add Company, which had been.accepted, but was not then due. And that.if, when, this bill became due, the funds of Phillips and Company-ip the hands of the acceptors were sufficient to pay it, the bill was extinguished, and recovery'could-not' be had on it.”
    To this instruction an- exception was taken.;' arid the'jury having given a verdict for the defendants,-the plaintiffs prosecuted this writ of error.
    The case was argued by Mr. Gilpin, for the plaintiffs in error; and by Mr; Crittenden, for. the defendants.
    Mr. Gilpin, for the plaintiffs in' error.
    The relation of Brander and M'Kenna with William E.'Phil-' lips and Company was strictly that of principals ánd agénts, or, factors.-. The former- had no interest of their own in the -cotton forwarded.. In performing this agency* the plaintiffs acted under two contracts, the nature ;and mutual obligations of which were well defined and understood. - Their general contract as agents arose* by legal implication, ..from the course of trade which had existed between them and Phillips and Company for a series of years. They received their cotton, sold it, made payments- and advances, and were allowed a certain commission. Their special contra ctj though relating to the same kind of business, was yet entered into for the particular benefit of Phillips, and Company^’ and on particular tergis. The object was to induce advances from Brander and M'Kenna, to the amount of eight thousand dollars, on a personal guaranty of certain individuals, independently of any security by shipments of cotton. To the extent of the probable security which such shipments would ‘ afford, they, were already willing jó' make, advances.'- This contract, therefore, could have no object, but to secure them,'if the whole'proceeds of the cotton .should not, in the end, cover the whole amount of the advances.

      ' Brander and M'Kenna, thus- being agents and factors, possessed, for their security, all the means which the law gives to persons in that relation; to these means they had a right to resort, to obtain payment of all that was due to them, either under the general or the special contract.
    Now what, under' such circumstances, are an agent’s rights ? In the first place, he has a lien on the whole property, to cover his whole liability; as well debts that he has actually paid, as debts for which he is bound to provide. On the 1st June, 1835, the cotton on hand was not more subject to be appropriated to the liquidation of a bill of William E. Phillips and Company, Which Brander and M'Kenna had then actually paid, than of one not yet due, which they had accepted.- No principle is better settled than this, that an agent cannot be required to .apply property in his hands to a debt due, if he has also incurred a future liability. The property may be held by him for the latter, as well as for the former. If not, what agent would ever make advances ? When a principal sends forward goods to his factor, even though sufficient to meet advances then actually made, they-are not more applicable to those advances, -than to liabilities then incurred, but not actually due. This has been established by a current -of authorities. Huber. Prælect. lib. 20, t. B. -sec. 1, 3; Ex parte Deeze, 1 Atkyns, 229; Godin v. London Assurance Company, 1 Burr. 494; Kirkman v. Shawcross, 6 Durnford and East, 16; Walker v. Brick, 6 Durnford and East, 262; Stevens v. Robins, 12 Mass. 180; Jarvis v. Rogers, 15 Mass. 414; Allen v. Maguire, 15 Mass. 490; Jolly v. Blanchard, 1 Wash. C. C. R. 255.
    If the property in the hands of the factor -was subject- to -be applied by him- to the latest of.his liabilities as well as to the earliest, is there a different rule in regard to the proceeds of that property? There' is certainly no reason why there .should'be. If it be right, for the factor to have security upoii the one, it is equally proper that he should have it-upon the other.- It is even more proper, because the objeot of the consignment is not merely to obtain advances, but also to háve sales made at anytime when the state of the market should fender it expedient. If the factor’s security were lessened by a sale; if the proceeds derived from the sale were held by him with a lien less éffective- for his security than the unsold, property, sales would never be made till the whole consignment was received. From the evidence in this case it is .apparent that Brander and M‘Kenna were to sell the cotton “ at their discretion;” their rights were not to be altered by the sale '; the price they received for the cotton remained in their hands, exactly as if it had been the cotton itself. Their lien on the one did not differ from their lien on the other. Ex parte Dumas, 2 Vesey, sen. 585; Kruger v. Wilcox, 1 Ambler, 252; Foxcroft v. Devonshire, 2 Burr. 936; Drinkwater v. Goodin, 1 Cowp. 251; Kinloch v. Craig, 3 Durnford and East, 122, 786; Atkinson v. Elliott, 7 Durnford and East, 376; Hammonds v. Barclay, 2 East, 227; Mann v. Shiffner, 2 East, 529; Haille v. Smith, 1 Bos. and Pull. 563; Houghton v. Matthews, 3 Bos. and Pull. 492; Cowell v. Simpson, 16 Vqs. 280 ; Hudson v. Granger, 5 Barn, and Aid'. 31; Colley **. Merrill, 6 Greenl. 50; Bradford v. Kimberley, 3 Johns. C. C. R. 434; Brown v. M‘Graw, 14 Peters, 495.
    If then Phillips and Company could not themselves have directed the application of any portion of the cotton forwarded by them, or of its proceeds, to any particular liability which-Brander .and M'Kenna had incurred as their factors, the law will not certainly-direct such an application. It will only do so in cases where a party, might himself have done it. Brander and M‘Kenna had the right, on the ,4th of June, to appropriate the money, which was then, in their'hands as the proceeds , of the cotton, to' any liability due or to become due, which they had then incurred; Phillips and Company could not control the exercise of that right;’ the Court therefore will not do so.
    . But, suppose- that the receipt by Brander and M‘Kenna of money derived from the sale of the cotton, in June, is to be considered as a payment to them; still, they never appropriated that payment to the account arisingvunder th,e special contract;-nor were they bound so to appropriate it. The evidence shows that they kept .their account of the advances to the amoúntiof eight thousand dollars under the special contract, separate and distinct from their genéral contract ;• in this sepárate account, they never gave a eredit for the -amount of thesé sales; it was rendered to Phillips and-Gompany, and such a credit never was. claimed by them; finally, one of the partners of that firm admitted, that the credit was properly applied to the general account, and although this admission was made after the dissolution Of tne partnership, yet it- is not the less competent evidence-of the fact. Wood. v. Braddick, 1 Taunt. 104; Lacy v. M'Neille, 4 DowL. and Ryl. 7, Nor were they bound by law to apply it to the 'special account; Phillips and Company having directed no application, it remained with Brander and M'Kenna to make it to one or-the other, at their-own option;, and especially might they so. make it as to provide 'for the debt which was least secured. Manning v. Weston, 2-Vern. 606; Goddard v. Cox, 2 Strange, 1194; Bodenham v. Purchas, 2 Barn, and Ald. 45 ; Peters v. Anderson, 5 Taunt. 601; Bosanquet v. Wray, 6 Taunt. 598; Kirby v. Marlborough, 2 Maule and Selwyn, 22 ; Simson v. Ingham, 2 Barn, and Cres. 65; Brewer v. Knapp, 1 Pick. 337; Dedham Bank v. Chickering, 4 Pick. 340; Blackstone Bank v.Hill, 10 Pick. 133; Hilton v. Burley, 2 New Hamp. Rep. 196 ; Cremer v. Higginson, 1 Mason, 324; United States v. Wardwell, 5 Mason, 85; Bainbridge v. Wilcocks, Bald. 538 ; Mayor of Alexandria v. Patten, 4 Cranch. 320; Field v. Holland, 6 Cranch, 27,
    Mr. Critteñden, for the defendants in error.
    No agreement was made between the plaintiffs iñ error and William E. Phillips and Company, that they should make advances on cotton to be shipped to them from Alabama. In 1834, an-agreement was made that bills should be drawn to the amount of weight thousand dollars, to be also signed by certain persons, and which Brander and M'Kenna .agreed to accept. No particular advance was made on any one of these bills; but as a bill or bills were drawn, cotton was to be shipped by William E; Phillips and Company, to furnish funds for payment. The contract of the drawers was, to furnish funds for the- payment, out of the proceeds of cotton, to pay the bill or bills when due. The Circuit Court of Alabama said, that if funds were so -provided, they should be applied to pay the bills as they became due; and they, denied the right of the plaintiffs in error to hold funds in then-hands provided by the drawers of the bills for their payment, for the purpose of paying bills which might become due subsequently; and by leaving the bills due unpaid, subject the'endorsers to liability. The jury have found that when the bill on which this suit was brought became due, funds were in the hands of the acceptors sufficient to pay ihem-; and this is conclusive.
    The bill on which this suit was instituted, was also signed by Horton and Terry, and'was payable in nine months, according to the contract with Williams, the agent of Brander and McKenna. The funds in their hands when the bill became due, should have beer, applied to pay the bill, without specific or express instructions. . The-obligation to make this application, .was implied by. the circumstances. On the deposit of the money in the hands of another, particular orders for its application are not required. Implied orders áre equivalent. In this case, the application of the funds to pay the first bill becoming due, wa?s ordered by the bill itself. .
    There is another consideration in this case which the. Court will notice. The quesfion here is one in which sureties are interested. The endorsers.of the bill are called upon to pay a. bill, for the payment of which ample funds were in the hands of the acceptor when it became due; and it is asked to apply those funds .to debts becoming due afterwards, with which they had no connection.-
    Can the drawers of the bill withhold the funds in their hands until' the final adjustment of accounts between them and the-drawers? This would be most ineiquitable, and against the express terms of the 'acceptance. The acceptance oh the part of the drawees, was a contract to pay the bill when it should become due: the contract on the.part of the’ drawers, was to furnish funds to enable them to pay it when due.. The contract of the latter has been performed; and shall.the contract of the former remain unexecuted, to the injury of the other drawers, who had no other. connection with the parties but upon the bill ?
    This court have said, in other cases, that whenever there is an account between parties and rests; the application of funds.in the hands of the “party to whom money is due, is to be made to the period of the rests in the account. Outstanding items in the account are not to operate to prevent such appropriations. Cited, Bell v. Morrison, 1 Peters, 351.
    The question in this case, is only on the instructions of the Court; were they correct, if the facts were so found by the jury?
   Mr. Justice M'Lean

delivered the opinion of the Court.

'This is a case on error from the Circuit Court for the district of South Alabama.

Brander and McKenna, in 1833, 1834, 1835, were commission merchants at New Orleans.; and acted'as factors and agents of William.E. Phillips and Company, of Huntsville, Alabama, in the sale of cotton, and made advances thereon.- On all sales they were to receive two and a half per cent.- for commission, and the Same amount for advances.

■ In August," 1834, Phillips and Company were indebted to Brander.. and McKenna, in the sum of -one thousand three hundred and fifteen dollars and fifty-seven cents, for. advances. On the 15th of the same month. John Williams, agent for Brander- and M'Kenna, agreed to advance Phillips and Company the sum of eight thousand dollars on bills, to be drawn between the 20th of April, and the 31st of July, 1835, by them, and any two. of ■ pix persons named; amorig whom were R. Horton, and N. Terry, two:of the defendants in error..

Between the 15th of August, 1834, and the 31st of July, 183., several shipments of cotton were made to the plaintiffs by the defendants, and several bills Were drawn by-them, some-jointly with Horton and Terry, arid others without them; all of which, were, accepted by the plaintiffs.

Thesé bills, including the advances previously made, amounted to the sum of twenty-nine thousand seven hundred and ninety-five dollars and sixty-five cents. The proceeds of the shipments of cotton to mee.t thése advances, amounted to the sum of twenty-two .thousand four hundred and sixty dollars and forty-three cents.

'The plaintiffs applied the proceeds of the cotton to-the liquidation of the bills'drawn by Phillips, and Company, to the exclusion of those drawn by. them jointly with'Horton and Terry; ’ and as me acceptances exceeded the proceeds of the cotton, this action was commenced on a .bill due 4th June, 1835, for'three thousand dollars drawn by the defendants.

On the trial, the Court instructed the jury that, if they bélievéd from the evidence that; at the maturity of. this bill, Brander and Mdferina had sufficient, funds of Phillips and Company hi their hands to. pay it, and believed Horton and Terry to be accommodation drawers and securities only, and knew this at the maturity of this bill;.then, in the absence of any instructions from Phillips and Company, in regard to the application of the funds, Brandar and M'Kerma were .bound to apply them to pay this bill, and could not hold them- to meet the payment of the bill drawn oii them by Phillips and Company, which had been, accepted, but was not then .due.. And that if, when this bill betiame due, the-funds of. Phillips and Company, in the hands of the acceptors, were sufficient to pay it } the bill was extinguished, and recovery could not be had on it.

- To this -instruction an, exception was taken, and- the plaintiffs in error contend, that they had a right to hold , the cotton-and .it» proceeds to meet- all outstanding liabilities, which they had -incurred on account of Phillips and pompany; and, that they had a right so to. marshal the securities, in the absence of any expresa agreement on the subject, as to save themselves from loss.

. Where, a factor makes advances, or incurs liabilities on a consignment of goods, if there be no special agreement,, he may. sell the property in. the - exercise óf a sound discretion, according to -general usage, and reimburse himself out of the proceeds of. the sale; and the consignor has no right to intertere. The lien ofa factor for advances and liabilities incurred, extends not only to. the property consigned, but, when sold, to the proceeds of the sale in''the'hands of the vendee, and the securities thetefor in.,the hands of the factor. Drinkwater v. Goodwin, Cowp. 251; Haughton v. Matthews, 3 Bos. & Pull. 489; Brown v. M'Gran, 14 Peters, 495; Story on Agency, 380.

But the case under consideration does not turn upon this principle. The liabilities of the plaintiffs exceeded the- proceeds of the property consigned: and,the question to be answered'is, whether they can claim a reimbursement-from .Horton and Terry, who were bound jointly with Phillips and Company, in certain bills amounting to eight thousand dollars.. Other bills to a much larger amount, drawn by Phillips and Company, without security, were accepted By the plaintiffs, several .of which- were not due, when the bill in controversy became payable: and the instruction of the Circuit Court to the jury was,-if at that time the plaintiffs had in their hands funds of Phillips, and Company, of a sufficient amount to pay this, bill, and they knew that Horton aq.d Terry .-were. accommodation drawers, .they were bpund to pay it.

When the• plaintiffs accepted this and the other bills, were they not aware of their respective amounts and, the times they became due? And were they not hound to take up the bills .at maturity? Of this there can he“no doubt.. The- bills drawn subsequently to Vthe one under consideration, amounted to fifteen thousand dollars, all of which were accepted by the plaintiffs; Were these, acceptances made, to any extent, on the credit of Horton and Terry? Thiá has not been contended. On what ground then can this action- be sustained? The application pf, payments by -the creditor, where no direction is given by the debtor, has no' relation to the present.casé.

' Had the bills become .payable at the sanie tipie, on acceptances made on the same day; the plaintiffs might .have 'insisted on applying the funds in their hands td the payment of the notes without securities.- But this-would' have been-a very different •case from the onte now. before us. After having accepted the bill under consideration, payable at a time stated, the plaintiffs accepted other hills, paykblbat a more - remote period. Now, the contract/by the acceptors was, that they would pay these bills as they respectively became due. And .this they were bound tó do, so long as the funds .of the consignors in their hands remained unexhausted. A bill became extinguished so soon Us if was paid by the plaintiffs; with the funds of Phillips and Company;' And this principle applies as strongly to those bills signed by the, accommodation drawers, as to others. -

Could the plaintiffs .lay a foundation for a recovery,against Phillips and Company,'by showing payment of a hill drawn by them, out of their own funds ? . This would not. be pretended. And yet this. is the principle contended-' for in the present case. The liability-of the accommodation drawers was as completely discharged, on the payment of the hill in question, as that of- the , principals. .

The relation of factors which the plaintiffs bore-, to Phillips and Company, gave them no power to vary their acceptances; The cotton consigned was to meet the payments of the hills, as they became due. This was known to Horton and Terry; .and it- may well be supposed that their - liability was incurred in-virtue of this arrangement. But the plaintiffs, by. appropriating the proceeds of the .cotton to the payment of future liabilities, have violated their contract,-endeavoured to defeat the just reliance of.the. sureties, and charge them with the payment ,of the hills which, they.guarantied. This tlie plaintiffs cannot do. It would he a great hardship, .if not a'fraud on the sureties.. No lien, can be regarded or enforced under such circumstances. The lien of a factor depends upon legal principles, founded on equitable considerations, and, can he. held valid on no other grounds.

We think that the instruction of the Circuit Court was correct ; and the judgment is, therefore, affirmed.'

This 'cause .came .on to be‘heard on the transcript,of the record from the Circuit Court of the United States, for the southern' district of Alabama, and Yas -argued by counsel.'' consideration whereof, it js now here ordered'and ádjudgéd-by this.Court,;that the judgment of- the - said Circúit Court in this' cause be, and thé same.is hereby,.affirmed, with'costs.


author: Mr. Justice M'Kinley

text:
    Tobias Nixdorff, Appellant, v. Lewis Smith, Appellee.
    A decree bf a perpetual injunction on suits instituted on the common. law side of the Circuit Court of the District of Columbia, reversed, and the bill dismissed; the accounts between the parties having been erroneously adjusted in the Circuit Court
    ON appeal from the Circuit Court of the United States, for the District qf Columbia, for- the county of Washington.
    ' This case was argued by Mr. Rey, for the. appellant; and.by Mr» Coxe, for. the appellee.
   Mr. Justice M'Kinley

delivered the opinion of the Court.

This is aft appeal ;to this Court, from the Circuit Court of .the District -of'Columbia, .for the county <df Washington, sitting in Chancery.

Smith, the appellee; filed a hill in Chancery against Nixdorff, stating that he' haff purchased of Nixdorff all his right and interest in the stock in' trade, and commercial business, then carried on in the city of Baltimore, by Nixdorffand Hager; and agreed to pay to Nixdorff, iii hand, the sum of five, thousand dollars, and at the expiration- of two years, thereafter, such further sum as would be sufficient to reimburse to- Nixdorff, the balance of his interest, fór investment of capital and interest 'thereon, after dér ducting the payment of the- five thousand'dollars. And in contemplation of the agreement, and after the terms had been fully settled among the parties, but before it was written, Smith entered -into, partnership with Hager, and.agreed with -him- to continue the same business, under the. name and firm of Hager and Smith. And in anticipation of the new partnership, it was agreed that the firm of Hager and Smith should assume the whole of the debts of Nixdorff and Hager, and provide fot their payment; and that all the debts owing to Nixdorff and-Hager should be collected by Hager- and Smith: and it was further agreed that Smith should sustain no loss by the .collection of the debts due to Nixdorff and Hager.

It is' further charged, that Nixdorff's half of the goods, in the store of Nixdorff and Hager, was sold jto Smith, at twelve and a half per cent, discount on the cost pricey that an inventory was taken of the goods, and, after making the stipulated deduction, Nixdorff’s half amounted to five thousand nine hundred and seventy-five dollars, and thirty-two cents. •. The agreement, dated the ninth day of August, 1833, and signed by. the parties, was made part of the bill. It is there charged, that the amount of debts paid by Hager and Smith for Nixdorff and Hager, includ- ■ ing interest to the first of November, 1837, was forty-five thousand nine hundred and ninety-two dollars, and fifty-two cenfs; and the aipount collected for them, with interest, to the same period, amounted to thirty-nine thousand six hundred and eleven dollars arid nine cents; showing a balance against Nixdorff and Hager of six thousand three hundred and eightv-one dollars and forty-three cents.

... It is further stated iri the bill, that the firm of Hager and Smith afterwards purchased of Nixdorff, who was then doing business on his own account, goods-and merchandise to the amount of four thousand five hundred dollars,-for which they gave their promissory notes; -that Hager and Smith afterwards failed in business, and Hager removed to. the western countryj leaving Smith to pay the debts of the.-firm ; that Nixdorff has brought suit against him, on the common law side of the Court, upon the promissory notes; and refuses to permit him to set off the above bataneé of accounts - in that. suit. He,. therefore, prayed that Nixdorff might be 'enjoined from proceeding further at law ; and that by decree of the Court this equitable off-set should be allowed. The prayer for the injunction was granted.

-Nixdorff, in his answer; denied that any balance was due from Nixdorff and Hager to Hager and Smith; and he also denied that he 'had ever refused to go into a settlement of the accounts between the .two firms.

By order of the Court below, the accounts between the parties,, as set up in the bill and answer, were referred to an auditor, with many special instructions. By his report it appears, that the amount of debts collected by Hager and Smith for Nixdorff and Hager, under the contract between the parties, amounted to forty-two-thousand and twenty-six dollars, including interest, to which he added the amount of goods contained in the inventory, after deducting twelve and a half per cent, from Nixdorff’s half, making in all fifty-four thousand eight .hundred and thirty dollars and twenty-six cents, to the credit of Nixdorff and Hager; and he changed them with debts paid under the contract, including interest, the sum of forty-five thousand nine hundred and ninety-two dollars and fifty-two cents; to which he added the sum of five thousand dollars paid by Smith to Nixdorff, making in all the amount of debits fifty thousand nine hundred and ninety-two dollars, and fifty-two cents; showing a balance in favour of Nixdorff and Hager, of three thousand eight hundred and thirty-seven dollars and seventy-four cents.

To this report the complainant filed the following exception. "The auditor has erred in this, that he has charged the complainant with the amount of the whole inventory of the goods of Nixdorff and Hager. Whereas the complainant was purchaser of one-half of the goods only, and should have been charged with no moré; the other half being the private property of Hager, and as such brought into the capital stock of Hager and Smith.” The Court sustained this exception, and directed the auditor to restate the accounts between the parties.

In the reformed report the auditor charges Nixdorff with forty-five thousand nine hundred and ninety-two dollar's and fifty-two cents, for debt's paid by Hager and Smith for Nixdorff and Hager, and adds the five thousand dollars paid by Smith to Nixdorff; making Nixdorff’s debt to Hager and Smith fifty thousand nine hundred and; ninety-two- dollars and fifty-two cents; and hepredits Nixdorff by forty thousand three hundred and' seventy-six dollars and sixty cents, for debts collected for Nixdorff.and Hager, to which he added -five thousand nine hundred and seventy-five dollars and thirty-two cents, for Nixdorff’s half of the goods; making the whole amount,of credits forty-six thousand three húndred and fifty-one dollars and ninety-two cents; leaving a, balance due from Nixdorff and Hager to Hager and Smith of four thousand six hundred and forty dollars and sixty cents. The amount of the debt due from Hager and Smith to Nixdorff, for which Smith was sued, being four thousand eight hundred and seventy-four dollars and forty-five cents, the auditor deducted the balance found due from Nixdorff and Hager, from that sum, and reports a balance finally due to Nixdorff of two hundred and thirty-three dollars and eighty-five cents; and excludes Hager’s half of the goods, included in the .inventory, entirely from the account; on the ground that they were not subject to the debts of Nixdorff and Hager.

To this part of the report the defendant excepted. But the Court overruled the exception, confirmed the reformed report of the auditor, and decreed that the injunction should be-made perpetual; except for the sum of two hundred and thirty-three dollars and eighty-five cents, as reported by the auditor.

A very brief examination of the case will test the correctness of this decree. The equity, set up in the complainant’s bill, rests entirely on the assumption that, upon a full and fair settlement of accounts, under the contract referred to, a large balance would be found against Nixdorff; and upon the apparent establishment of this fact, is the decree founded. If, however, it be shown that, instead of Nixdorff being indebted to Hager and Smith, on such settlement, they are largely indebted to him, the bill will be without equity, and the decree of course erroneous. By bringing into the accounts all the effects of Nixdorff and Hager, the auditor’s first report shows, very satisfactorily, a considerable balance in favour of Nixdorff. ,

But the complainant’s counsel seems to have taken up the idea, that the five thousand dollars paid by Smith to Nixdorff applied ex lusively to the payment of Nixdorff’s half of the goods; and that the legal effect of the payment was, to release Hager’s half of the goods from liability to the debts of Nixdorff and Hager: and this principle was recognised by the auditor in his reformed report, and by the Court in their decree; notwithstanding the allegations in the complainant’s bill, and the stipulations of the contract, show clearly, that the five thousand dollars were paid upon the purchase of the whole of Nixdorff’s interest. Whether the payment was special or general, is not material to the merits of the case; but it is very material in considering the effect ascribed to it in the .Court below. For, if the payment had the power to release Hager’s part of the goods from liability, because Nixdorff had sold to Smith his part of them, and received part of the purchase-money, it must necessarily have the same effect, if it applied to the sale and purchase of the whole of Nixdorff’s interest. The. fact being that Nixdorff did sell the whole of his interest to Smith, and received the five thousand dollars in part payment of the whole; to carry out the principle assumed, the whole of Hager’s interest in the firm of Nixdorff and Hager was thereby discharged from liability to the payment of their debts; and the burden of paying them devolved upon Nixdorff. A course of reasoning leading to conclusions so much at variance with law and justice, is answered'by merely stating it.

This singular error originated in charging Nixdorff with the five thousand dollars paid by Smith,'on account of the whole purchase ; and then refusing to charge Hager and Smith with the whole amount of the partnership effects in their hands, originally ' belonging to Nixdorff and Hager. The very moment that Nixdorff was charged with this sum of five thousand dollars, the payment of it by Smith was neutralized, and the transaction between the parties stood as though no payment had been made. The only consideration left, therefore, to support the sale by Nixdorff to Smith, was the undertaking of Hager and. Smith, in the written contract, to pay the debts of Nixdorff and Hager. In this aspect of the case, the liability of all their effects in the hands of the former, to the payment of the debts of the latter, cannot be doubted. By the first report of the auditor it appears that he settled the accounts between the parties, upon the principles here suggested; that is, by charging Hager and Smith with the whole' inventory of the goods, and the money collected for Nixdorff and -Hager, and by charging Nixdorff with the money paid by Hager and Smith, in discharge of the debts of Nixdorff and Hager, and also with the five thousand dollars- paid to him by Smith. And upon this statement of the' accounts, as already shown, a considerable balance appears in favour of Nixdorff and Hager.

But .the auditor afterwards, it appears, became a convert to the doctrine of the complainant’s counsel; and, in his reformed report, excluded Hager’s part of the goods from the settlement altogether; and thereby created a seeming balance in favour of Hager and Smith, to nearly the amount of their debt to Nixdorff, on which the suit at law was brought. This - statement of the accounts by the auditor in his first report, as far as it has been-here examined, is perfectly correct; and ought to have been confirmed by the Court. The .equity, set up in the bill, depending entirely on the truth of ..the allegation, that the balance would be ip favour of Hager and Smith, upon such settlement of the accounts; the balance being clearly established against them, and in favour of Nixdorff, extinguishes, therefore, all pretence to any equitable set-off in favour of Smith. The decree of the Circuit Court is, therefore, reversed, the injunction dissolved, and the bill dismissed.


text:
    John H. Randolph, Executor of Algernon S. Randolph, deceased, Plaintiff in error, v. Israel Barrett, Executor of Joel F. Randolph, deceased, Defendant in error.
    Amendment. The defendant, in the Circuit Court of Mississippi, was sued and declared against as the administrator of Algernon S. Randolph. He entered his appearance to the suit, and in person filed a plea in abatement, averring that he was not administrator of Algernon S. Randolph, and that he was the only executor of Algernon S. Randolph. The plaintiff moved to amend the writ and the declaration, by striking out administrator, &c., and inserting executor. Leave was granted, and the amendment was made. Held, that there was no error in the Circuit Court in giving leave to amend.
    The power of the Circuit Court to authorize amendments, when there is anj thing in the record to amend by, is undoubted. In this case the defendant admitted by, hi? plea that he was the person liable to the suit of the plaintiff; but averred that he was executor and not administrator. Whether he acted in one character or the other, he held, the assets of the testator or intestate in trust for the creditors ; and when his plea was filed, it became part of the record, and furnished matter by which the pleadings might be amended.
    This amendment is not only authorized by the ordinary rules of amendment, but also by the statute of the United States of 1789, sec. 32.
    - IN error to the Circuit Coúrt of the United States, for the southern district of Mississippi.
    A summons was issued in the southern district of Mississippi, to John H. Randolph, stating him to be the administrator of Algernon S. Randolph, deceased, to answer the defendant in error, Israel Barrett, the administrator of Joel F. Randolph, of a plea of trespass on the case, returnable to May term, 1839. To this writ the marshal returned, “ Executed personally on J. H. Randolph, April 23, 1839.”
    ■ The plaintiff below, on issuing the writ, filed a declaration against John H. Randolph, as administrator of Algernon S. Randolph, deceased, for acceptances of' bills of exchange for the use of the plaintiff’s intestate; for money paid, laid out, and expended ; and on an account stated, amounting to the sum of five thousand dollars and upwards.
    On the 26th of April, 1839, John H. Randolph, having appeared to the action, filed the following plea;

      The said John H. Randolph comes and defends, &c., when, &c., and prays judgment of the plaintiff’s writ and declaration, because he says, that he the said John H. Randolph is not administrator of the goods and chattels, rights and credits, which Were of Algernon S. Randolph at the time of his death, nor hath he ever administered as such upon any of the goods or chattels, rights or- credits of the said Algernon S. Randolph, but that he, the said John H. Randolph, is the only executor of the last will and testament of the said Algernon S. Randolph, who has qualified as such, and this he is réady to verify; wherefore he prays judgment of the said writ and declaration, and that the same may be quashed, &c.
    At May term, 1839, the plaintiff and defendant being in the Circuit Court by their attorneys, on motion Óf the plaintiff’s attornéy, it was ordered by the Couu, that he have leave to amend his writ and declaration herein; which said amendment is made accordingly by striking out the words, “ administrator of all and singular the goods and chattels, rights and credits, which were of Algernon S; Randolph, at the time of his death, who died intestate,” and .inserting “executor of the last will and testament of Algernon S, Randolph, deceased;” and thereupon it was further ordered, that this cause be continued till the next November term of the Court aforesaid.
    Afterwards, at the November term of the Court, on the fourteenth day of November, 1839, the following judgment was entered by the Circuit Court. The plaintiff appearing by his attorney, and it appearing to the satisfaction of the Court, that the writ aforesaid has been duly executed on the defendant, John H. Randolph, executor of the last will and testament of Algernon S. Randolph, deceased, and he failing to appear, though solemnly called, judgment was rendered for the plaintiff, Israel Barrett,administrator of Joel F. Randolph, for five thousand six hundred and fifty-five dollars, the damages having been assessed under a writ of inquiry.
    From this judgment the defendant below prosecuted this appeal. '
    The case was argued by Mr. Henderson, for the plaintiff in error. No counsel appeared for the defendant.

      The following errors were assigned by the counsel for the plaintiff in error.
    1. That the judgment is rendered against the defendant below on default, whereas a' good and sufficient plea in .abatement is interposed by the record, which is undisposed of by judgment or otherwise.
    2. It is error, That the Court below extended to plaintiff leave to amend equivalent to a new action, and proceeded to judgment without award of new process, or rule to plea de novo.
    3. It is error, That the judgment is rendered against the defendant as executor, &c., when, as it appears by the record, he is summoned and declared against as administrator.
    Mr. Henderson said: The latitudinous rule of amendment, given to the plaintiff in this case, may not perhaps be successfully contested: but it must be a manifest error, that there was in fact no amendment made under the rule; and yet the judgment is rendered, as if the amendment had been made according to the rule.
    We suppose it certain that leave to amend, specifying in what the amendment shall consist, cannot be regarded as the amendment itself. Had the defendant further pleaded, he must have pleaded to the declaration, and not to the rule of amendment. But the writ and declaration still remain, charging defendant as administrator: defendant could not, therefore, respond as executor, and must have again reasserted his plea of ne unques administrator.
    So yet stands his plea; and hence we say it is error that it has not been decided on.
    Of, in the other aspect, it is error, that the Court has rendered judgment against the defendant as executor, on a misrepresentation of the fact, as appears by record, that he was summoned as executor, when the writ shows differently, and upon a decíaration also charging him as administrator. An amendment of a declaration, inserting a new name, is a new declaration; and it is the attorney’s and not the clerk’s business to make the amendment. 2 Brock, C. C. R. 14. So of amending a bill, 3 Wash. C. C. R. 354.
    The judgment does not conform to the writ and pleadings, and cannot be made so to do in this Court.
   Mr. Justice M'Kinley

delivered the opinion of the Court.

This is a writ of error to the Circuit Court of thé United States for the southern district of Mississippi.

The defendant in the Court below was served with a writ of summons, in an action on the case, and a declaration was filed against hipa, as administrator of all and singular the goods and chattels, &c., of Algernon S. Randolph, deceased, who died intestate, &c. To which the defendant entered-jm appearance, and filed in person a plea in abatement, averring that he was not administrator of the goods and chattels, &c., which were- of the said Algernon S. Randolph, at the time of his death, &c.; but that he, the said John H. Randolph, Was the only executor of the last will and testament of the said Algernon S. Randolph, deceased, &c. Whereupon the plaintiff moved for leave to amend the summons and declaration, by striking out the words “administrator of all and singular the goods and chattels, rights, and credits, which were of Algernon S. Randolph, at the time of his death, who died intestate,” and inserting “executor of the last will and testament of Algernon S. Randolph, deceased.” The leave was granted, the amendment ordered, and the cause continued. At the next term of the Court, judgment by default was rendered against the defendant.

To reverse this judgment, the counsel fof the plaintiff in error relied on these grounds: First, The -Circuit Court had no authority to' order the amendment off the summons and declaration, there being nothing in the record to amend by. Secondly, No judgment could be rendered against the defendant, until the plea in abatement was disposed of. Thirdly j Judgment by default could not be taken against the defendant after appearance entered.

The power of the Court to authorize amendments, where there is any thing on the record to amend by, is Undoubted. In this case, the defendant admitted by his plea, that he was the person liable to the suit of the plaintiff; but averred that he was executor and not administrator. Whether he acted in one character or the other, he held the asset» of the testator, or intestate, in trust for the creditors; and when his plea was filed, it became part of the record, and furnished matter, by which the pleadings might bé amended. Master v. Hurtz, 3 Maulé & Selwyn, 450; Barnes, Notes of Practice, 5; 1 Mass. 433. And, in addition to these authorities, express authority is given, by the thirtyTsecond section of the judiciary act of 1789, to the Courts of the United States, to permit either of 'the parties, at any time, to amend any defect in the process or pleadings, upon- such conditions as the Courts shall, in their discretion and by their rules, prescribe. This amendment is, therefore, not only authorized by the ordinary rules of amendment, but by the. statute also.

The object of the defendant in filing the plea was, to prove that he was hot administrator, and that he was executor; and thereby to abate the plaintiff’s writ. The motion of the plaintiff for leave to amend the writ and declaration, so as..to charge the .defendant as executor and not as administrator, amounted to a confession of the truth of the .plea; but instead of abating the writ according to the prayer of that plea, the Court granted the motion of the plaintiff, and ordered the amendment. This proceeding was a final disposition of that plea in abatement; and, as.the defendant appeared for the purpose of pleading in abatement only, the decision of the Court upon the plea put him out of Court; and for failing to appear again, and plead to the action, judgment by default was properly rendered against him. The judgment of the Circuit Court is, therefore, affirmed.


author: Mr. Justice Catron

text:
    The United States, Appellant, v. John Breward, Appellee.
    Florida land claim. Breward petitioned the Governor of East Florida, intending to establish a saw-mill to saw lumber on St. John’s river, for a grant of five miles square of land, or its equivalent; ten thousand acres to be in the neighbourhood of' the place designated, and the remaining six thousand acres in Cedar Swamp, on the west side of St. John’s river, and in Cabbage Hammock, on the east-side of the river. The governor granted the land asked for, on the condition that the mill should be built; and the condition was complied with. On the 27th of May, 1817, the surveyor-general surveyed seven thousand acres under the grant, including Little Cedar Creek, and bounded on three sides by Big Cedar Creek, including the mill. This grant and survey were confirmed.
    Three thousand acres were laid off on the northern part of the river St. John’s, and east of the Royal Road, leading from the river to St. Mary’s, four or five miles from the first survey. This survey having been made at a place not within the grant, was void; but the Court held that grantee is to.be allowed to survey under the grant three thousand acres adjoining the survey of seven thousand acres, if so much vacant land can be found; and patents for the same shall issue for the land, if laid out in conformity with the decree of the Court in this case.
    In 1819, two thousand acres were surveyed in Cedar Swamp, west of the river St. John’s, at a place known by the name of Sugar Town. This survey was confirmed.
    Four thousand acres, by survey, dated April, 1819, in Cabbage Hammock; were laid out by the surveyor-general.- This survey was confirmed.
    By the eighth article of the Florida Treaty, all grants of lands made before the 24th of January, 1824, by his Catholic Majesty, were confirmed; but all grants made since the time, when the first proposal by his majesty for the cession of the country was made, are declared and agreed by the treaty to be void. The survey of five thousand acres having been made at a different place from the land granted, would, if confirmed, be a new appropriation of so much land, and void, if it had been ordered by the Governor of Florida; and of course it is void, having nothing to uphold it but the act of the surveyor-general. Cited, 10 Peters, 309.
    In the Superior Court of East Florida, the counsel for the claimant offered to introduce testimony in regard to the survey of three thousand acres; and the counsel of the United States withdrew his objections to the testimony. The admission of the evidence did not prove the survey to have been made. Proof of the signature of the surveyor-general to the return of survey, made the survey prim-1 facie evidence. Cited, Mrs. Wiggins’s Case, 14 Peters, 346.
    The proof of the signature of Aguilar to the certificate of a copy of the grant by the Governor of East Florida, authorizes its admission in evidence; but this does not establish the validity of the concession. To test the validity of the survey, it was necessary to give it in evidence; but the survey did not give a good title to the land.
    The United States have a right to disprove a survey made by the surveyor-general, if the survey on the ground does not correspond to the land granted.

      ON appeal from the Superior Court of East Florida.
    The claim is founded .on a petition of Breward, dated 23d August, 1816, and an alleged decree of Governor Coppinger thereon, dated the following day. The- petition states, that “ he intends to establish a mill to saw lumber for the supply of commerce and the province, which he wishes to situate upon St. John’s river, on the creek known by the name of Little Cedar Creek; and whereas said costly fabric requires to secure in lands and timber wha* may be sufficient to cover the great expenses which are' necessary to build it, and it being all for the benefit of the province, he prays that there may be granted to him the usual five miles square of land, or its equivalent, destining to him ten thousand acres in the neighbourhood of said place, and the remaining six thousand acres in Cedar Swamp, on the west side of St. John’s river, and in Cabbage Hammock, on the east- side of said river.”
    Governor Coppinger’s decree on this petition states, that, “ in consideration of the benefit and advantages which ought to result in favour of the province, if what the interested proposes is effected, the lands and permission which he solicits are granted to him; but with the express condition, that he shall not have the absolute right to them until he erects said machine.”
    The original of the' petition and decree were not produced in evidence; -neither were they to be found in the archives at St. Augustine: but a certified copy, under the hand of Thomas de Aguilar, secretary of the government, whose handwriting was proved, stating that they were true copies, faithfully taken from the original which existed in his office, was offered, and was objected to by the district attorney, and admitted by the Court.
    There was also offered in evidence plats and certificates of survey, made for John Breward, by George J. F. Clark, surveyor-general :
    1. Dated 27th May, 1S17, for seven thousand acres of land between the branches called Cedar Creek, and Dunn’s Creek, on the northern part of the river St. John’s.
    2. Dated 28th August, 18 i 9, for three thousand acres on the northern part of the river St. John’s, and east of the Royal Road leading from said river to St. Mary’s.

      . 3. Dated 10th October, 1819, for two thousand acres in-Cedar Swamp, on the west part of the river St. John’s, at a place known, by the name of Sugar Town.
    4. Dated 19th April, 1820, for four thousand acres, in Cabbage Hammock, on the east part of the river St. John’s, and south of the branch .called Dunn’s. Creek, which runs from Dunn’s Creek to the said river.
    After hearing testimony in the cause, the Superior Court made a decree in favour of the claimants for, the four tracts of land; from which the present appeal is taken.
    For the United States, it was contended that the decree should be reversed, because:
    1. That there was not sufficient evidence that the said alleged grant or commission was ever made by Governor Coppinger.
    2. That the alleged concession, if made, was on a condition precedent, which was never fulfilled.
    3. That the concession, if ever made,did not contemplate that the lands conceded should be surveyed in-four different tracts or parcels.
    4. That the description of the lands in the grant are too vague to be the foundation of a valid survey.
    5. That the plats and certificates of survey do not conform to the description of the lands in the- said pretended grant.
    The case was argued by Mr. Legare, the attorney-general, for the appellants; and by Mr. Wilde, for the appellee,
   Mr. Justice Catron

delivered the opinion of the Court.

The petitioner asked five miles square of land, being sixteen thousand acres, on Little Cedar Creek, of St. John’s river; he intending to' establish a mill to saw lumber. Ten thousand acres were asked for in the neighbourhood of the place; and the remaining six. thousand acres, in Cedar Swamp, on the west side of St. John’s river, and in Cabbage Hammock, on the east side of that river.

On the 20th of August, 1816, the Governor of Florida decreed the same, on the condition the mill was built. The condition was complied with.

1. On the 27th of May, 1817, George F.-Clark, the surveyor-general of the province, surveyed for Breward seven thousand acres, including Little Cedar Creek; and bounded on three sides-by Big Cedar Creek and Dunn’s Creek; and which includes the mill; This survey .is valid.

2. There were laid off three thousand acres on the northern part of the river St. John’s, and east .of the Royal Road, leading from the river to St. Mary’s. This survey is proved to lie four or five miles from the first survey, and is on Front Creek. It was-made the 28th of August, 1819.

By the eighth article of the Florida Treaty, all grants of land made before the 24th of January, 1818, by his Catholic Majesty, were confirmed. But all grants made since the 24th of January, 1818, when the first proposal by his majesty was made for the cession of the country, are declared and agreed by the treaty to be null and void. This survey having been made' at a different place from the land granted, would, if confirmed, be a new appropriation of so much land; and void, if it had been ordered by the Governor of Florida, and, of course, it is void, having nothing to uphold it but the act of the surveyor-general. So this Court held in Seton’s case, 10 Peters, 309. The party, however, is entitled to his entire ten thousand acres in the neighbourhood of Little Cedar Creek. The decree confirming the three thousand acre survey, is therefore reversed; and this quantity of land will be ordered by the Superior Court of East Florida, to be surveyed adjoining the seven thousand acre survey, on vacant land; the addition to conform to the fourth article of the instructions to the surveyor-general, of the 10th of June, 1811, (Land Laws United States, 1004.) The* seven thousand acres, and the three thousand acres, will be laid down in connection, as one ten thousand acre survey. Not more than one-third cah be bounded in front on the river St. John’s, should the. claimant choose to add the three thousand acres next to either side of the seven thousand acre traet adjoining the river. The seven thousand acre survey being three hundred and sixty chains deep, the ten thousand acres can only front one hundred and twenty chains.

Amotion was made to the Court below, on the part of the petitioner, to be permitted to introduce testimony in regard to the survey of three thousand acres; when offered, the counsel for the United States withdrew the. objections to the introduction of the paper.

It is now insisted for complainant, that the validity and legality of the survey was admitted; and Richard’s Case, 8 Peters, 470; Sibbald’s Case, 10 Peters, 323; and Seton’s Case, 10 Peters, 309, are relied upon.

These authorities, we think, do not sustain the argument. It being necessary to establish that such a survey had been made by the surveyor-general, proof of his signature was prima facie sufficient to authorize the reading of the paper'; and if the attorney of the United States was satisfied that the plat and certificate had-been made by that officer, (about which he could hardly be mistaken.) to require proof of the fact would have been useless.'

The contests on Aguilar’s cértificates have been numerous. Nothing was required but proof of the secretary’s signature to admit in evidence the copy of the concession; so this Court held in Mrs. Wiggin’s Case, 14 Peters, 346 : but when the concession was admitted, its legality was not conceded by the defendant: no such ground.has been, to our recollection, assumed, nor do we think it can be assumed in regard to the survey. To .test its legality by the laws and regulations of Spain, it was necessary the Court should have the survey in evidence. It was the common case of the competency of a title paper, wanting legal effect: thé Court, therefore, properly admitted the paper, but improperly adjudged it gave title to the land.

3. The next survey (dated in 1819) is for two thousand acres in Cedar Swamp, west of the river St. John’s, at a plaee known under the name of Sugar Town; Had this last designation been left out, no. difficulty could be raised in regard to the fact that the survey'had been located at the place granted; nor do we think this makes any difference, although a witness proves he knew nothing of such a town.

' The surveyor having described the land-as laid off within the description of the grant, we take the fact to be primá facie, as he certifies it; nor do we think the certificate discredited by the further description, even should the object called for not be found. This survey is therefore confirmed.

4. The survey for four thousand acres, (dated in April; 1819,) is in Cabbage Hammock, and within the grant, taking the certificate of the surveyor-general - to be primá facie true. And this, we think, is the credit that lawfully attaches to it. His duties were prescribed by the instructions to him, in 1811, (Land Laws, 1034;) and if his plot and certificate are lawful on their face, they must be accredited, until jthe United States disprove them; which they have the right to do, if the survey on the ground does not, in fact, correspond to the land granted; although the certificate may dedare it to be at the proper place. This survey is also confirmed.

The cause is, however, remanded to the Court below, to be further proceeded in, as regards the rejected survey of three thousand acres.