author: Mr. Justice Barbour

text:
    John P. Van Ness, Appellant, vs. Alpheus Hyatt and others, Appellees.
    The principle of the common law undoubtedly is, that no property but that in which the , debtor has a legal title is liable to be taken in execution; and, accordingly, it is well settled in the English Courts, that an equitable interest is not liable to execution. In the United States, different views have been taken of this question in the Courts of the several states. Except, as against the mortgagee, the mortgagor is regarded as' the real owner of the property mortgaged; and this rule has very extensively prevailed in the states of the United States, that an equity of redemption is vendible as real property on an execution; and that it is also chargeable with the dower of the wife of the mortgagor.
    The -equity of redemption of a mortgagor of land in that part of the District of Columbia, ■ ceded by the state of Maryland to the United States, cannot be taken in execution under -ii fieri facias. At’the time of the cession to the United States, the rule of the common • law was the law of Maryland. '
    It is not necessary to refer to authorities to sustain a proposition that a chose in action is not liable to be levied on by a fieri facias.
    APPEAL from the Circuit Court of the United States, for the county of Washington, in the District of Columbia.
    In November, 1836, the appellant filed a bill in the Circuit Court against Alpheus Hyatt and others. The following were the important facts'in the case, as .sustained by the evidence:
    In December, 1818, William Cocklin leased to James Shields a lot of ground in the city of Washington, for ten years, from January 1st, 1819, for the rent of thirty-five dollars per annum. The lessee covenanted to erect and build, Avithin tAvelve months, a tAyo-story brick house upon the lot; and the parties agreed, that if at or before the expiration of the lease, the lessee should pay to the lessor the sum of three hundred and seventy dive dollars, the rent should cease„and so if a portion or part of the sum of three hundred and seventy-five dollars should be paid within the time, the rent should be diminished according to the sum or sums paid. On the. payment of the whole of the sum, William Cocklin was to make to the lessee a good and sufficient title in fee simple to the lot.
    James Shields, on the 23d of September, 1823, mortgaged thé lot and .improvements upon it to John Franks, to secure a debt of $1127; and on the 7th day of May, 1825, the mortgagee assigned all his right and title under the mortgage to Alpheus-Hyatt, one of the appellees; and on the 9th day of May, 1825, James Shields released all his interest in the lot to Alpheus Hyatt, for. the consideration of two hundred dollars. Subsequently, in May, 1826, Alpheus Hyatt, having paid to the heirs and representatives of William Cocklin the whole sum of threfe hundred and seventy-five dollars; and the intermediate rent, they released to him the premises, and conveyed to him in fee simple all their fight, title, and property in the same. '
    On the eighth day of November, 1823, John P. Van Ness, the appellant, obtained, before, a magistrate of .the county of Washington, a judgment for thirty dollars and twenty-five cents, against James Shields, and he caused a fieri facias to be issued on the judgment, on-the 10th of June, 1824, under which a levy was made by the constable having the process, on the right, title, interest, estate, and claim of James Shields, in and to the lot originally held .by him/ under the lease and agreement with William Cocklin. The property levied, upon was sold by the constable, under the process for the s'um of fifty-four dollars, on the 10th of July, 1824; and John P. Van Ness, the appellant, became the purchaser thereof on the 19th day of August, 1825; the constable conveyed the .premises sold by him, to the appellant, by a de'ed of indenture, which was recorded on the 9th of January, 1826.
    The appellant having filed his bill stating all the facts, and alleging the conveyances made by Shields and Franks, and the heirs and representatives of William Cocklin to have been erroneous and fraudulent, and avering his full readiness to pay the heirs and representatives of William Cocklin, or to the representatives of Franks, all that Shields was bound to pay to them; prayed a decree 'that the property should be assigned to him, and that he should be quieted in the possession' of the same; and for general relief.
    There was no evidence to support the allegations of fraud stated in the bill, nor was there any proof given of notice to the appellees of the same. The answers, as far as .they were responsive to the bill, and the several exhibits with the bill and the answers, were the-only proofs in the cause.
    The Circuit Court, after a hearing of the parties by their counsel, dismissed the bill with costs; and the complainant prosecuted this appeal.
    The case was argued by Mr. Hoban and Coxe, for the appellant; and by Mr. Key for the appellees.
    For the appellant, it was contended, that the Circuit Court erred in refusing the prayer contained in the bill.
    That the sale of the constable conveyed the estate of Shields at the time to Van Ness.
    That there is no proof of any other incumbrance on the property, . than the purchase-money and rent, when Van Ness purchased.
    Mr. Hoban considered the interest of Shields in the lot, at the time of the sale by the constable, as one liable- to execution. The mortgagor in possession is the owner of the property, and his interest may bé levied upon and sold. Cited, M‘C!all vs. Lenox-, 9 Serg. and Rawle, 230. 2 Greenleaf’s Rep. 132. 1.6 Mass. Rep, 305. 4 Johns. Rep; 41, 10 Johns. Rep. 481. 12 Johns. Rep. 521. 1 Barn, and Aid. 230. 3 Paige’s Rep. 219. 9 Cranch’s Rep. 153.
    Coxe, also for the appellant, contended,
    that the interest-of Shields in the land, was such as. was the subject of an execution; and that the deed from the constable to the appellant conveyed that interest. It was recorded within the time required by law, and was -a valid and efficient deed. The mortgagor is the-, owner of the property mortgaged against all the world, the mortgagee excepted.
    Mr. Key for the appellees:—
    The appellant acquired no lien on the property,of Shields' by the judgment obtained before a magistrate. This is prohibited by the act of Congress'of March, 1823. Birch-s Digest, 311. Nor was any acquired by the levy made under .the fieri facias issued under the judgment. This is the consequence of the provision of the act of' Congress against a Men. There is no, record of judgments before magistrates, and therefore no notice of them. The same may be said as to the sale by the constable; and until the deed of August, 1825, was recorded in January, 1826, nothing could be known of fue proceedings by which a bona fide purchaser might protect •himself.
    Shields had no property which could be made the' subject of a levy. In May previous to the proceeding he had mortgaged the lot to Franks, who subsequently, before the constable’s sale, conveyed the mortgaged interest to Alpheus Hyatt. On the 9th of May, 1825, Shields released all his interest in the premises to Mr. Hyatt.
    But Shields had no interest upon which a levy could be made under the lease from Cocklin; or if he had, an interest under the lease, it expired on the 1st of January, 1826. The appellant applied in 1836 to the heirs of the lessor, to redeem in 1836, when all the interest under the lease was sure.
    • Shields.had nothing but an equity of redemption on the property;; and this in the District of Columbia, which is regulated by the law' of Maryland prevailing when the territory was.ceded to -the United States, could not be levied upon. 8 East, 484. 2 Saunders, 11. Actr of Maryland of 1810, ch. 130. 9 Cranch, 496. 2 Harris a'nd M'Henry, 355. 5 Harris and Johns.-315. , -
   Mr. Justice Barbour

delivered the opinion of the Court.—

This is an appeal from the Circuit Court for the county of Washington, in a suit in equity brought by the appellant in that Court, in 'which a decree was made, dismissing the bill with costs. •

The case was this. On the 31st day of December, 1818, an agreement was entered into between William Cocklin and James Shields; by which Cocklin leased to Shields part of a lot in the city of Washington, for ten years, from the 1st of January, 1819, for the yearly rent of thirty-five dollars. The lessee was to build a two story brick house on the-lot, within twelve months from the date of the lease. And it was agreed between the parties, that if, at the expiration of the lease, Shields should pay to Cocklin three hundred and seventy-five -dollars, then the rént should cease -to be paid; or if all, or any part of the three hundred and sevénty-five dollars were paid before the expiration of the lease, then such pari of the rent of thirty-five dollars should cease, as should bear an equal proportion to the money so paid. And on the receipt of the whole of the purchase money, and not before; Cocklin should make to Shields a good and sufficient title in fee simple, to the lot of ground described in the lease.

On the 23d of September, 1823, Shields, the lessee, mortgaged the premises to a certain John Franks, to secure a debt of $1127 18. On 7th May, 1825, Franks assigned all his right and title to the appellee; who also, on the 9th of May, 1825, procured from Shields a release of his interest, and from the representatives of Cocklin a conveyance of all their .title, on the 16th of April, 1826.

On the 8th of November,.1823, the appellant obtained, before a magistrate in Washington county, a judgment against Shields for $30 25, and a fieri facias issued thereon, on the 10th of June, 1824; which was levied by the constable, upon the right, title, estate,. ■ interest, and claim of Shields in the lot in question. .At the sale of the lot, under this execution, the appellant became the purchaser, at the price of $54; and the constable, by a deed dated the 19th of' August, 1825, and recorded the 9th of January, 1826, conveyed the right and title of Shields in the lot, to the appellant.

The bill was brought by the appellant against' the appellee, Shields, the representatives of Cocklin and of Franks, stating the above facts, which are all that are material to a correct understanding of the case; charging that the mortgage to Franks was fraudulent and covinous, and that all the conveyances to the appellee were made with full knowledge by all parties of the appellant’s purchase and rights; averring his readiness to pay all that Shields was bound to pay for the property in question, at the time of his purchase, to Cocklin or his heirs, Or to the representatives of Franks, then deceased; and praying that all the parties might be compelled to assign their, pretended rights and claims to the property in question, to the complainant, and deliver up quiet possession of the premises; afid for general relief.

The view which we have taken of-the case renders it unnecessary to state the grounds of defence taken in the several answers. It will be sufficient to say, that there is no proof in the cause, except the answers, as. far as they are responsive to the bill, and the several exhibits with the bill and answers: that all the facts stated above are contained in the bill itself, and proven by the exhibits; and that there is no evidence to sustain either fraud, or notice, as alleged in the bill.

Upon this state of the case the question arises, whether the appellant is entitled to the relief which he prays for. The only interest which the appellant can claim in the property in question, is derived from the levy made by the officer under his execution, and the purchase made by him at the sale under that execution, of whatever right, title, and claim Shields had' in the property. Now it must be borne in mind, that not only before the sale, but even before the levy, Shields had mortgaged the lot to Franks: and, consequently, his right was only an equity of redemption. Was this such a right or interest, as that a fieri facias could he levied -upon it ? The principle of the common law undoubtedly is, that no property but that in which the debtor has a legal title is liable to be taken by this execution; and, accordingly, it is well settled in the English Courts, that an equitable interest is not liable to execution. 1 Vesey, Jr. 431. 8 East, 467. 5 Bos. and Pull. 461.

In the United States different views have been taken 'on this question, in the Courts of the several states. It is' said, in 4 Kent’s Commentaries, 153, 154, that Courts of law have, by a gradual and almost insensible progress, adopted the views of a Court of equity on the subject of mortgages, which are founded in justice, and accord with the true intent and inherent nature of the transaction; that except as against, the mortgagee, the mortgagor, while in possession, and before foreclosure, is regarded as .the real owner; and that, in this country, the rule has very extensively prevailed, that an equity of redemption was vendable 'as real property on an execution at law, and that it is also chargeable with the dower of the wife of the mortgagor: and cases are referred to, in New York, Connecticut, and other states, in support of the proposition. On the contrary, it has been held in Virginia, that the resulting interest of a grantor in a deed of trust made to secure debts, cannot be reached by execution. 6 Rand. 255. And this principle is not' without some strong reasons in its support, independently of mere authority.. Amongst _others, Lord Ellenborough very cogently remarks, in 8 East, 481, that the sheriff could only sell subject to the trusts; that the execution creditor, or the vendee, would still be obliged to go into equity, to get an account, or to redeem -prior encumbrances, which might be dohe in the first instance by a judgment creditor, with less expense and delay; besides, the destruction of the debtor’s estate, which under so much doubt and difficulty would sell greatly under value, so that a large equitable interest might be exhausted in satisfaction of a small demand, to the detriment of other creditors.

Whatsoever may have been the decisions upon this subject, in the .Courts of some of the states, in which the Courts of law have, by a gradual and almost insensible progress, adopted the equitable views of the subject,” we must be governed, in deciding- this case, by that law which Congress enacted for-the District of Columbia, on assuming jurisdiction over it. They adopted the laws of Maryland then in force, as far as regards that part of the District in which this question arises. Amongst those laws was the common law. ■ Now we have already seen, that by the common law, an equitable interest, such as an equity of ’ redemption, is not liable to execution. This would be decisive of the case, unless there should be. found to be some legislation, or some course of authoritative judicial decision, which had so far modified the common law, by engrafting upon it the principles' of the Court of equity, in relation to mortgages, as to change the rule in this respect. It is not pretended that any legislative act has produced this effect, Is there any course of judicial decision which does? Three Maryland cases have been cited for this purpose. As to two of them, viz. Purl vs. Duvall, 5 Harr. and Johns. 69. 74, and Ford vs. Philpott, 5 Harr, and Johns. 312, it would be sufficient to say,.that they had been decided many years since the cession by Maryland of that part of the District, in which'this question arises, was made; and, therefore, whatever, respect might be due to them, they are not authority. As to thé case of Campbell vs. Morris, which was decided in the year 1797, we are informed that the Chief Justice of the Court had declared that the covenant for quiet e.njoyment in that case was a legal estate, which was ■ attachable; and that the Court gave' no opinion whether .an equity of redemption was.liable to attachment.

But without examining thése cases in detail, or undertaking to say that they would leave the question, entirely free from doubt, we think that there is enough, both in the legislation and judicial decisions of Maryland, and in a decision of this Court, to show how the law is understood there.

As to legislation. By the act of Assembly of 1810, sheriffs, under a fieri facias, are authorized to seize and expose to sale any equitable estate or interest which the debtor may have in any lands, tenements, or hereditaments. Now, why was this act passed ? If such had been considered the principle at common law, the act would have been mere supererogation. It is, therefore, in our opinion, decisive evidence to prove, that the contrary was considered to be the law.before its passage, as it does not profess to be a declaratory act.

But let us for a moment examine the judicial decisions of Maryland, and one in this Court.

In 6 Gill and John. 72, it is decided that a mortgagor cannot maintain trespass against a mortgagee. On the contrary, in 11 John. 534, it is decided that a mortgagor may maintain trespass against the ihortgagee. In 4 Kent’s Com. 154, it is said, that an equity of redemption is chargeable with the dower of the wife of the mortgagor. On the contrary, this Court, in the case of Stelle vs. Carroll, at the last term, 12 Peters, 201, professing to follow the law of Maryland, in other words, the common law, decided, that the widow of a mortgagor was not dowable of an equity of redemption. Now, why these contrary decisions upon these two important points, in relation to the nature and character of the interest and title of a mortgagor ? There can be but one answer. That in New York and other states, following a similar course, the Courts of law had, by a gradual progress, adopted the views of a Court of equity in relation to mortgages; and considered the mortgagor, except as against the mortgagee, whilst in possession, and before foreclosure, as the real owner, and even as against the mortgagee having the right of possession; whilst- in Maryland, as we learn from the case before referred to,.in 6 Gill and Johnson, the legal estate is considered as being vested in the mortgagee; and that as soon as the estate in mortgage is created, the mortgagee may enter' into possession, though he seldom avails himself of that right. In these antagonist doctrines, we have the clew to the opposing decisions of the Courts. Neither dower can be recovered, nor trespass maintained, where there.is a mere equity; nor,where that is the case, can a fieri facias be levied. The same principle, then, precisely, which, in Maryland precludes the recovery of dower by the widow of a mortgagor, or the maintenance of an action of trespass by a mortgagor against a mortgagee, exempts, also, the equity of redemption- of- a mortgagor from being liable to .execution.

But there is a case decided at the lqst December term of the Court of Appeals of Maryland, which, we think, puts an end to all question in .this case. From a.manuscript record of that case, which has been laid before us, we extract the-following language: “ The last point raised by the appellants is, that .the property taken under the execution was not legally the property of Brady, and thatequitable interests in personal property are not the subjects'of an execution. With the appellant’s premises on this point, as legal propositions, we see no reaspn to find fault. It cannot be.denied as a legal principle, that a debtor’s equitable estate in personal property cannot, at law, be seized and sold under a fieri facias.” Now, this was the case of personal estate; but it proves, clearly, that.,but for the act of 1-810, before referred to, the same principle wouldhave applied to real estate; for the difficulty does not grow out of the kind of property, but out of the kind of interest in the property, to wit, that it .is equitable, and not legal.

Upon thése grounds,, we think that Shield’s interest in the,lot was not subject to execution, on account of its being an equity of redemption.

There is one ground' stated, in the manuscript opinion of the Court of Appeals of Maryland, before referred to, in relation to this subject, which it may be proper to notice.

It is there said, that, .as in case of equitable interests, a Court- of equity would, after an execution issued, and a return showing that there was no available remedy at law, assist the party, by charging the.equitable interest; so the Court, if -applied to for that purpose, would decree a ratification of a sale of such interest, where it had been made by the officer under the execution. Whatever might be the authority of .a .Court of equity on this subject as'against Shields himself, it could not be done in .this case; because here there are third parties, who have, for a valuable consideration, without notice, acquired a previous equitable right, and gotten in, also, the legal estate.. So that they stand upon the great principle that they, have the prior equity, and that equity fortified by the legal title.

But there is another view of this case, which we will present very briefly, which also brings us to the conclusion that Shields’ interest in the- lot in question would not have been liable to execution; even if it had not been encumbered by a previous mortgagé. And it is this: beyond the mere lease for years, Shields had- no interest. whatsoever in the lot, but the right to purchase, in case he, by a given time, complied with the particular conditions. Now, this right to purchase, we consider nothing more than a contract by which the party was ■ entitled, if he had elected to' have done so, upon certain terms, to secure to himself certain benefits. In other words, at the time of the levy of the appellant’s executions, Shields had a conditional right to purchase, which, in effect, was nothing more than a chose in action. We do not think it necessary to refer to authorities to sustain a proposition so well settled, as that an execution of fieri facias cannot be lévied on a chose in action.

But even if this could be done, no one could derive a greater benefit under that contract than the party himself; and Shields could not have claimed the benefit of the election given to hirn to purchase, because it depended, in its very terms, on particular condition's to be performed by him, at a particular time;' which were not performed. Upon these grounds, we think that Shields had not such an interest -in the lot in question as was liable to execution; that, consequently, the appellant acquired no right by his purchase, which gives him a stand in a Court of equity to ask for the right of redemption, of any other relief. The decree of the Circuit Court is therefore right, and is affirmed, with costs.

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


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Thomas P. Moore, Plaintiff in error, vs. The Bank of the Metropolis, Defendants in error.
    The defendant in an, action in the Circuit Court, had with others, received the proceeds of a joint and several promissory note discounted for them at the Bank of the Metropolis, and this note was afterwards renewed hy their attorney under a power of attorney authorizing him to give a joint'note, but he gave a joint and several note; the proceeds of which the attorney received, and appropriated to pay the note already discounted at the Bank. The interest of the sum borrowed Was paid out of the money of the parties to the note. Held, that although the power of attorney may not have been executed in exact conformity to its terms; and may not have authorized the giving of a joint and several note; a question the Court did not decide; yet the receipt of the proceeds of the note by the attorney, and the appropriation thereof to the payment of the former note, was sufficient ' evidence to sustain file- money counts in the declaration.
    When an exception is taken on a trial to evidence, after it has been given without objec- ■ tion to the whole matter stated in the exception, if any part of it was admissible, the objection may be properly overruled. It is the duty of a party taking exceptions to evidence, to point out the part excepted to, where the evidence" consisted of a number of particulars, so that the attention of the Court may be drawn to the particular objections.
    IN error to the Circuit Court of the United States, for- the county of Washington, in the District of Columbia.
    The Bank of the Metropolis, oh the 27th of September, 1837, instituted an action of assumpsit against, Thomas P. Moore, the plaintiff in error, on a promissory note dated the 16th day of February, 1837, payable sixty days after date; by which the defendant, Thomas P. Moore, P. H. Pope, and Richard M. Johnson, by George Thomas, their attorney at Washington, jointly and severally promised to pay to the plaintiffs the sum of five thousand dollars current money of the United States, for value received.
    The declaration also contained a count on the same note, stating it .to be the note of Thomas P. Moore, to the plaintiffs, and also a count for the amount of the same note as so mueh money paid, laid out and expended, at the special instance and request of the defendant, and for the same sum had and received by the défendant to the use of the plaintiffs.
    The defendant pleaded non assumpsit, and the cause was tried before a jury in November 1838, and a verdict and judgment rendered in favour of the plaintiffs. The defendant filed two bills of exceptions, to the ruling of the Court on matters presented on the trial; and he afterwards prosecuted this writ of error.
    The first loill of exceptions stated:
    On the trial of this cause the plaintiffs, to sustain the. action on their part, proved by a competent witness, that on the 27th March, 1834, the said defendant with Richard M. Johnson and P. H. Pope, executed their joint and several note, and on the same day by their (.checks,- drew from the said plaintiffs the proceeds thereof* which had been carried to their credit; that said note was not paid at maturity, but lay over unpaid until the 30tih January, 1836, when it was cancelled; that on the 30th day of January, 1836, the said parties executed and delivered to the said plaintiffs their promissory note, Which was discounted by said plaintiffs and the proceedS'thereof carried to the credit of said drawers, and the interest in arrears paid. That on the 29th of February, 1836, the said parties executed and delivered to George Thomas, at that time cashier of the Bank of Metropolis, a power of attorney, which said power of attorney was given for the single purpose of acting for said parties in relation to said last mentioned note and the renewal thereof; jand that the said George Thomas, professing to act by virtue of said power of attorney, under said power of attorney made and executed the nóte mentioned and described in the declaration; that the same was then discounted by said, bank, the proceeds carried to the credit.of the said drawers, and the arrears of interest upon the former and last preceding note, together with the discount of this note paid and credited on said account, and the said note dated 30th January, 1836, was cancelled, but witness does not recollect by what-person said interest or discount was paid. To the admissi-bility of which notes, or any of them, or any matter above stated in evidence, the defendant objects;, but the Court, overruled the objection and permitted all of said notes, knd the proceedings in regard to them and the matters stated, to be given in evidence to the jury. To which opinion of the Cou’rt the defendant excepted.
    The second bill of exceptions stated:
    In addition to the evidence contained in the aforegoing bill of exceptions, tl. plaintiffs offered evidence tending to prove that the banks in Washington county in the District of Columbia, have been in the practice (some banks, for less,'and some for more than twenty years) of taking and discounting notes in the form of the one now in suit, made directly to the banks or some of the-officers for their use whenever offered; and that-the banks preferred to loan upon such paper; that the reason of this practice has been one of mutual convenience to the borrower and the banks, the first being saved from the costs of protest, and the last being saved the risk of a failure to give notice to the endorser; and that it was very .usual for the banks to lend money on a pledge of stock, taking in return the single note of the borrower, payable to the banks, or .some of their officers,. without endorsement The plaintiffs further gave evidence by competent testimony, tending to prove that -it had been the- practice of, and usage of the various banks in Washington county in this district, to discount, indiscriminately, paper on which there was an endorser or endorsers, or on which all the parties were drawers, and the paper drawn directly to the bank itself, or some of its officers, acting in behalf of the bank; that both were considered equally the subjects of discount, but that the witness cannot recollect at this moment any particular instance, in which, when all the parties were non-residents, as is and was the case with the alleged makers of this note, the bank has discounted on that paper alone, though he has no doubt such cases existed; but that in all of the said banks the major part of the accommodation paper discounted was in the form of notes drawn by one party in favour of another person who endorsed it to the bank, and that this particular note in suit was discounted in the usual manner. The defendant then offered;evidence tending to prove that on the 27th of. March, 1834, the plaintiffs discounted the joint and several' note of R. M. Johnson, P. H. Pope, and' the defendant,- for the amount of $5000,-(being the same note inserted in the first bill of exceptions,) and that at the time, of discounting said note', the plaintiffs reserved-out of the proceeds thereof the sum of $103 33, as interest, or discount upon the 'same, for four months and four days; that the said note lay over unpaid until the 30th day of January, 1836, when the sum of $450 was paid on the same, as interest in arrear, and that on the same day a second note was given by the same parties to thepláintiffs (the same note which is also inserted in the first bill of exceptions) .in renewal of the first described note, payable in six months from its date, which was discounted by the plaintiffs, who at the time of said last mentioned discounting received the sum of $153 33, as interest on the same for six months ánd four days; that the said'second note, also, lay over until the 16th day of February, 1837, when the sum of $166 67, was paid on it as interest in arrear, from the,30th July, 1836, to 16th February, 1837, and on the same day the note in suit was given in renewal of tfie last described note,which said note in suit was discounted on the day of its date by the plaintiffs, who received on said day of its date, the sum of .fifty-three dollars-and thirty-three cents, as the interest in advance, for sixty-four days. Whereupon the defendant prayed the court to instruct the jury as follows:
    1st. If the jury believe from the evidence, that the note in suit was given in renewal of other notes previously given'by the same .parties to the plaintiffs, and that the plaintiffs received or reserved in. advance, as discount, the interest, at the rate .of six pér centum per annum, on the amount of debt mentioned in said notes, or any of them, for the times they or .any of them, had to run, then the receipt or reservation of said interest in advance, is evidence of usury; and the juiy may infer üsury from the same'.
    2d. That if the jury beli'evé from the evidence, that the nóte in suit was given in renewal of other notes successively given- by the same parties to the plaintiffs, for the amount of $5000 loaned to the said parties by the plaintiffs; and that at the time of the original loan the plaintiffs reserved the interest on the said sum of $50Q0, at the rate of six per centum per annum, for the.time the original note had to run, or that at the time of renewing or discounting the note in suit, the plaintiffs received of the makers thereof, or any one for them? the interest in advance for the period of sixty-four days, then said facts are evidence of usury in the transaction, and the jury-may infer usury from said facts on the note in suit.
    3d. That if the jury believe from the evidence, that the note in suit was given to the plaintiffs in renewal of a note for the same amount, drawn by the same parties, directly to the plaintiffs, as payees, payable six months after date, which had been previously discounted by the plaintiffs, for the accommodation of the said parties; and that on said note, drawn at six months, the plaintiffs received at the time of discounting it, the interest in advance for six months and four days, at the rate, of six per cent, per annum on the amount of said note, then'the said facts are evidence of usury, and it is competent for the jury to infer usury in the note in.suit.
    4th. If the jury believe from the evidence, that the plaintiffs received on the day of the date of the note in suit, the sum of $166 67, as and for interest alleged to be .due from the 30th July, 1836, to the 16th February, 1837, (six months and seventeen days,) on.a prior note for. @5000, given by the same parties to the plaintiffs, falling due on the said 30th July, 1836, and that the- note in suit was given in renewal of said note, falling due on the 30th July, 1836, then the plaintiffs have- taken illegal interest, and -it is competent for the jury to infer that the note in suit was given in pursuance of an usurious agreement.
    5th. That the written power of attorney, executed to George Thomas by the defendant, together with R. M. Johnson and P. H. Pope, gives', no authority to said Thomas to execute a joint - and several note-in behalf of said parties; and that the defendant cannot be charged in this action by reason of any. joint and several, note, purporting to be executed by the said R. M. Johnson, P. H. Pope, and-this defendant, by the said Thomas, as their attorney, under said written power. . .
    But the Court refused to give any of the said instructions to the jury, and the defendant exeepted.
    The power of attorney referred to in thé bills of exceptions was in the following terms. ■
    Whereas we have a joint and several note of hand discounted in the Bank of the Metropolis — Now ’
    Know all men by these presents, that we, Richard M. Johnson, Thomas P. Moore and P. H. Pope, all of the State of Kentucky, do hereby nominate, constitute and appoint George Thomas, of the city of Washington, our true and . lawful attorney in fact, and by .these presents do authorize and empower him, for us, and in our _ names, to sign our joint note to the president and directors of the Bank of the Metropolis, for five thousand dollars, for oür accommodation, and the same to renew, from time to time, as it may become due, for the whole or any part thereof — Hereby ratifying,and •confirming all and every the act and acts of our said attorney, in and about the premises, so. long as the bank shall continue the accommodation to us. In witness whereof, we have hereunto set our hands and seals, at the. city of Washington, the 29th. day of February, 1836.
    Rh. M. Johnson, . [seal.]
    P. H. Pofe, [seal.]:
    T. P. Moore. [seai¿]¡
    Witness, Sam.,Stettinius.

      The case was argued by Mr. Brént, Jun., for the plaintiff in error; and by Coxe for the defendant.
    Mr.-Brent contended that the Circuit Court hád erred in refusing to give each instruction prayed for; and it. was further insisted on, in behalf of the appellant;'
    1st. That the usage of the banks, as given in evidence, can have no possible bearing on the questions of law involved in the instructions asked for, but that, being a question of fact, it was incumbent on tlie appellees to have asked for an instruction as to its effect, if believed by the jury.
    2d. That the usa|e proved is insufficient to exempt the transaction from-usury.
    3d. That no established usage is proved'-in the case.
    The objection of the plaintiff in error, is to the allowance of the Court to the plaintiff below, to give a joint and several note, in evidence, under a power of attorney authorizing' the execution of a joint note only. The power was to give a joint note, and the note on which" .the suit Was brought was a joint' and several note. In 2 Johns. Rep. 19, it is decided that an authority to give a note of a particular date, is not an authority to give a note, of any other date..
    A joint note is not the same as a joint and several note; on the former, one writ only can issue, all the parties must be sued together; Dut-on a joint and several note, suit may be brought against each of the persons .who are parties-to it. This is material as to costs.
    Another matter for consideration,.and one which is material, is that the-act of the assembly'of.-Maryland gives a right to contribution in favour of those who are sureties from co-sureties; and a Surety paying may have an assignment of the judgment when he jpays' it. . This makes it most important that the power of attorney should be strictly pursued. .When the attorney departs from the authority given to him by his principal, although for his benefit, his acts do not bind the principal. 7 Barnwell and Creswell, 278. Ambler’s Rep. 498.
    It was argued in the Circuit Court that the word “several,” in a power of attorney may be rejected as surplusage, and the joint powers given retained. This position cannot be sustained. Cited Sugden on Powers, 210; to show how important and essential an adherence to forms is deemed.
    Admitting that the^execution of a power may be sustained, where there is surplusage in the terms of it, yet this exists only when the acts to be done, or done under it, are -divisible. But this set-off can only be obtained by the aid ofia Court of Chaneery.
    In this case the action was brought on the note as.“joint and several.” Then the .election was to treat the note as “joint- and several;” and yet, when the objection was made, the nofe was set up as a joint, note. A power of attorney to three person^ to execúte the powers granted, cannot be executed by two. -An authority to do a thing in one way, cannot be performed by executing it in another way.- The note should not, therefore, have been given in evidence. Cited 1 Peters, 29. 1 Roll’s Abridg. 529. L. plaeetum, 15. As to the ratification of the act of an attorney by, the receipt of the money, and its appropriation to pay. a prior note for the same .sum, fthen due, it must be considered as not having been the act of the defendant. He was absent, and ignorant of the transaction.
    It may be said that there was evidence to support the money counts in the declaration. .But this cannot affect the right of the plaintiff to have the judgment of the Circuit Court reversed. Cited Greénleaf vs. Birth, 5 Peters, J. 35.
    The counsel was proceeding to argue the question, of" usury, raised by the second bill of exceptions: 'the Court would not permit the argument, the point being considered settled.
    Coxe for the defendant:—
    The discounting of thé note by the bank was a continuation of a former loan. Cited Barry vs. Foyles, 1 Peters, 316. Minor- vs. The Mechanics’ Bank of. Alexandria, 1 Peters, 47.
    If parties 40 a joint note are sued severally, they should plead the matter in abatement.- It is not regular to make the objection.under a plea to the general, issue.
    But-the verdict of the jury was upon the whole matter j and tne evidence given was legal, and sufficient to sustain the money counts in the declaration.
    Mr. Brent stated that the object of the plaintiff in error was to get rid of the .verdict for five thousand dollars. He is perfectly willing to pay his portion of the debt.
   Mr. Justice Thompson

delivered the opinion of the Court:—

This case comes up on á writ of error to the Circuit Court of the United States, for the District of Columbia, in the county of Washington.

■ It is an action of assumpsit, upon a promissory note, purporting -to'have been made by the defendant, and Richard M. Johnson, and P. H. Pope, by their attorney, George Thomas; the note, bearing date the 16th of February, 1837; by which the makers, jointly and severally, promise to pay to the President and Directors of the Bank of the- Metropolis or order, sixty days after date, the sum of five thousand dollars.

The-declaration also contains the common .money counts: and upon the trial of the cause, the plaintiffs offered in evidence, to sustain the action, sundry matters set. out in the following bill of exceptions. :—

FIRST BILL OF EXCEPTIONS.

Gn the trial of this cause’ the plaintiffs, to sustain the action on their part, proved, by a competent' witness, that on the 2.7th March, 1834, the said defendant, with Richárd M. Johnson and P. H. Pope, executed their joint and several note as follows:—

“@5000. “ Washington City, March 27th, 1834.

‘Four months after date we jointly and severally promise to pay to the President, Directors, and Co. of. the Bank of the Metropolis, or order, five thousand dollars, without-defalcation, value received, payable at said bank. “Rh. M. Johnson,

“T. P. Moore,

“P. H. Pope.”

And on the same day, by their checks, drew from the said plaintiffs the proceeds thereof, which had been carried to their credit:—

Washington City, March 27th, 1834.

“ Cashier of the Bank of the Metropolis, pay to bearer forty-eight ■ hundred and ninetyrsix 67-100 dollars. “ P. H. Pope,

“Rh. M. Johnson,

“ T. P. 'Moore.”

.That Said note was not paid at maturity, but lay over unpaid until the 30th January, 183.6, when it was cancelled; that on the 30th day of January, 1836, the said parties executed aiid delivered to the said plaintiffs their promissory note, as follows: — .

Six months after date we jointly and severally promise to pay to the President and Directors of the Bank of the Metropolis, or order, five thousand dollars, without defalcation, value received,, this 30th day of January, 1836. “Rh. M. Johnson, ■

@5000. . “P. H. Pope,

“ T. P. Moore.'

“Cr. of R. M. Johnson, and others, to renew a note of same amount.”

Which was discounted by said plaintiffs, and the proceeds thereof carried to the credit of said drawers, and the interest in arrears paid. That on the 29th of February, 1836, the said parties executed and delivered to George Thomas, at that time cashier of said Bank of the Metropolis, a power of attorney, in the words and figures following, that is to say:—

“ Whereas we have a joint and several note of hand discounted in the Bank of the Metropolis — Now

“Know all men by these presents, that we, Richard-M. Johnson, Thomas P. Moore, and P. H. Pope, all of the state of Kentucky, do hereby nominate, constitute, and appoint George Thomas, of the city of Washington, our true and lawful attorney in fact, and by these presents do authorize and empower, hint, for us, and in our names, to sign our joint nóte to the President and Directors of the Bank of the Metropolis, for five thousand dollars, for our accommodation, and the same to renew, from time to time, as it may become due, for the whole or any part thereof — Hereby ratifying and' confirming all and every the act and acts of our said attorney, in and about the-premises; so long as the bank shall continue the accommodation to us. In witness whereof, we have hereunto set our hands and seals,, at the city of Washington,'the 29th day of February, 1836.

District op, Columbia, Washington County, to wit:

On this 29th day of February, in-the year eighteen hundred and thirty-six, personally appeared Richard M. Johnson, P. H. Pope, and T. P. Moore, before me, the subscriber, a justice of the peace in and for the county aforesaid, and acknowledged the above power of attorney to be their act and deed, for the purposes mentioned therein. s ■. “ Sam’l Stettinius, J. Peace.”

Which said power of attorney was given for the -single purpose of acting for said parties in relation to said last mentioned note and the renewal thereof; arid that the said George Thomas, professing to act by virtue of said power of attorney, urider said power of attorney made .and executed the note mentioned and described in the declaration, to wit:—

“ $5000. ^ “ Washington, 16¿A Feb. 1837.

“ Sixty days after date, we jointly and severally promise to- pay the President and Directors of the Bank of the Metropolis, or order, at the said bank, five thousand dollars, for value received.

“Richard M. Johnson, Thos. P. Moore, P. H. Pope,

“By their attorney, Geo. Thomas.”

That the same was then discounted by said bank, the proceeds carried to the credit of the said drawers, and the arrears of interest upon the.former and last preceding note, together with the discount of - this note paid and credited on said account, and the said note dated 30th January, 1836, was cancelled, but witness does not recollect by what persori said interest or discount was paid. -To the admissibility of which notes, or ariy of them, or any matter above stated in evidence, the defendant objects-; but the Court overruled the objection, and permitted all of said notes, and the proceedings in regard to them and the matters stated, to be given in evidence to the jury. To which opinion of the Court the defendant excepted.

There was another bill, of exceptions taken at the trial, growing out of the refusal of the Court to give certain instructions prayed ; touchinig the alleged usury in- the note, by reason of the interest having been taken in. . advance on discounting the note. But it is unnecessary to notice these instructions. For all exceptions on this account were, abandoned at the argument, as raising a question too well settled to be now drawn into discussion. The last prayer contained. in this bill of exception, which raised the question whether the power of attorney given to George Thomas authorized him to sign the note upon which this suit is brought, will be noticed under the first .bill of exceptions, where the power is set out at length, so far as is necessary for the decision of this ca.se; so that the second bill of exemptions-may be laid-entirely out of view.

The general questions arising under the first bill of exceptions are, whether the evidence offered was admissible, and if so, whether it was sufficient to maintain the action, either upon the count on the note signed by George Thomas, or on the money counts. The exception was taken after the evidence had been given (without objection) to the whole matter stated in the exception ; and if any part of it was admissible, the objection was properly overruled. It is fire duty of a party, taking exception to the admissibility of evidence, to point out. the part excepted to, when the evidence consists of a number of particulars, so that the attention of the Court may be drawn to the particular objection. The objection here taken, was in the broadest possible manner to all the matter stated in the bill of exceptions. That some part of this .evident e was admissible,under the money counts, cannot be doubted. One of th¿ notes to which the objection extended, is the one upon which the first count in the declaration is founded. And whether that was admissible or not, depends upon the power of attorney, to George Thomas, set out in the exception, under and by virtue of which he made the note in question.

That power, it will be seen, authorized him to sign a joint note; whereas, the one he gave was a joint and several note.

If it war necessary to decide this question in order to maintain the action, it may well be questioned whether the power did not authorize the making a joint and several note. There is some diversity of opinion on the Bench.upon' that point. The object of the power, as appears upon its face cle.arly was to make a note as the renewal of a joint and several note, which the parties had running in the bank- It recites as follows: “ Whereas, we have a joint and several note of hand discounted in the Bank of the Metropolis,” ahd then proceeds to empower' George Thomas to renew the same from time to time as it fell due. But there may have existed some reason why they preferred changing the form, by giving a joint instead of a joint and several note. The power is certainly not strictly pursued, though probably according to the intention of the parties. But as the cause does not turn .entirely on this point, we pass it by. The action is clearly maintainable on the money counts. If the note was properly given under the power, it was admissible under the first count, or under the money counts. If signed by the attorney without sufficient authority, it was void, and to be laid out of view, and the cause stands upon the other evidence given at the trial; which shows the original loan by the bank, to Richard M. Johnson, T. P. Moore, and P. H, Pope, qpon their note, dated 27th March, 1834, by which they jointly and severally promised to pay the bank five thousand dollars, in four months after date. By their joint check of the same date, they drew out Of the bank @4896 67, the proceeds of the note, deducting the discount. That note not being paid, anothér joint and ■ several note was given by them, bearing date' the 30th of January, 1836, for @5000, payable six months after daté; which was discount- ‘ ed by the bank,-and-tile proceeds carried to the credit of the makers, deducting the discount and arrears of interest. And the power of; attorney was afterwards given to George Thomas, authorizing, him to make another note, as a renewal of. the one iast mentioned; and-under which authority, he made the note now in question, which was discounted, and the proceeds carried to the credit of the makers;. and-the arrears of interest on the noté then in bank, and the discount upon the note now in question, was paid, and credited, in account with the malcérs, and the note of SOth of. January, 1836, was cancelled. This evidence is amply sufficient .to. show, @5000 was originally advanced to the makers of these notes, and that upon the several renewals, they have been credited with the .proceeds, and all the notes given up and cancelled, without payment in any way, except by the -note made by George Thomas, under the power of attorney; and if that note is void, the bank is without a remedy, except upon the money counts, to recover the money paid upon the check of P. H. Pope, R. M. Johnson, and T. P. Moore. This money has gone to the joint use of the three, who might all have been' joined in the action. But if any objection^ could be made to the suit against Moore alone, by reason of the non-joinder of the other two, it should have been pleaded in abatement, and cannot be taken ■ advantage of upon the general issue. This is a well settled rule in pleading ;.and is fully recognised by. this Court, in the case of Barry vs. Foyles, 1 Peters, 316.

The judgment of the.Court below is accordingly affirmed with costs.

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