author: Mr. Justice WAYNE

text:
    John Perkins, Appellant, v. Edward P. Fourniquet and Harriet, his wife, and Martin Ewing and Anne, his wife.
    Releases given by the complainants, in the present case, decided to cover, the matters in controversy, and, therefore, to put an end to all claim by them; inasmuch as there is no proof that they were obtained by fraud or circumvention. ’
    This was an appeal from the Ciicuit Court of the ■ United States for the Southern District of Mississippi.
    The case, in some of its branches, had been before the court ■ three times before. A motion to .dismiss a cáse between the same parties, at- January'term, 1848, is reported in 6 Howard, 206. It came up again at January term, 1849, and is reported in 7 Howard, 160. Again, at December term, 1851, a dispute, growing out of the. same matters, was before this court,' and-the judgment of the court below affirmed by a divided court. Consequently, it was not reported; but the mandate, which was issued therein, gave rise to a difficulty, which will be the subject of -the succeeding case in this volume. Ewing and wife were parties, together with Fourniquet and. wife, to the present suit, but the controversy cannot be distinctly understood, without a reference to the case in 7 Howard, 160. The family connection ,of the parties is there explained.
    , The present, claim of Fourniquet and wife, and Ewing and wife, against Perkins, was founded on the alleged rights of the marital community of Mrs. Perkins (the mother of Harriet and Anne) with Mr. Perkins,' according to the laws of Lo dsiana.
    ■ The bill alleges the marriage was consummated in Louisiana, Where both the widow Bynum and the defendant Perkins were then citizens; and that the defendant always retained his legal and political domicil in Louisiana, though some time after the martiage, for the ostensible purpose of health, established a family residence near Natchez, in the State of Mississippi. The bill charges, that defendant, during the marriage, expended of community funds, in the State of Mississippi, in permanent investments of .real estate, an amount of about $539,600, which remained in kind at the dissolution of the marriage by the deatT of his wife in 1824, but which he has since sold and disposed of to his own use. That defendant had no revenues or resources in Mississippi from which these investments were made; but it was all derived from the revenues of his and his wife’s property and cotton estates in Louisiana, and were partnership funds, in which complainants, as heirs of their mother’s community, had rights of partnership, and now have right to hold defendant to account therefor. They charge, that if defendant intended, and expected to get an advantage to himself, by investing the community funds in the State of Mississippi, rather than in Louisiana, then it was a fraud on his part, for which he is liable; or, if intended in good faith, yet such investment charged defendant with a trust, for which they pray he may be held responsible.
    But complainants aver, that as defendant has heretofore kept back and concealed from settlement this investment and never accounted for the same, but in settlement with them obtained their, receipts and release in full, in which this matter was not included, that said releases, so far as they may be invoked to bar this claim, were obtained by fraud and circumvention. And they declare the matters of this bill were kept back by defendant, and never accounted for. And they call on defendant to produce the account and items rendered by' him .when he obtainéd these releases, and show for what they were given.
    They aver, too, that Harriet’s release was given while she was yet a minor.
    They pray for an account of proceeds, or amount of said investment, with eight per cent, interest, and for general relief.

      Answer.

    Defendant, in his answer, admits the marriage in Louisiana, admits the parties, and admits substantially the investments made in the State of Mississippi. But qualifying and explain*, ing,- says: That, same year of the marriage he and his wife removed to the State of Mississippi, and continued their domicil there during all the time of their married life, which terminated by the death of his wife on the 12th August, 1824. That this ■removal was in pursuance of an understanding had between them before marriage with a view to health, and facilities of educating the children. Admits hérétained some political rights in Louisiana after his removal till 8th of June, 1821; but says his.civil domicil was changed as aforesaid, and on this allegation predicates his first and principal ground of defence, viz., that by reason of this domicil “respondent has always • acted under the belief that there,was no community of acquets and gains of- property, lying iñ Louisiana, between respondent and his said wife under the laws of Louisiana.”
    As a second ground of defence, he submits, aiso, that if, as alleged in said bill, the domicil was not changed, yet, as [lead of the community, he was entitled to the absolute disposal of the acquets and gains, without accountability to his wife, or her legal representatives.
    As a third ground of defence, denies that the investments in Mississippi were made with money to which his wife had áhy legal or equitable title whatever. And denies they were made to gain any unjust advantage over his wife or her heirs.
    Fourth point” of defence is matter in abatement, in which defendant assumes, that if liable to the demarid made in said bill, it is only to an administrator of his wife’s estate,- and not to the complainants.
    Fifth ground of defence is, that he has on tain ed the releases of complainants for all claims on account of the estate of their father and mother, and relies upon them as if formally plead in bar, denying they were obtained by fraud or concealment.

      Sixth ground of defence submits, that if said investments were made with .money in which his wife had an interest, yet that defendant is entitled to the property, as tenant by curtesy during his natural life; .and he interposes this right as if plead in bar.
    Upon the final hearing, the Circuit Court passed the following decree:

      In Chancery. Final Decree.

    The report of William H. Brown, Master in Chancery, made in the above-stated case, and filed herein on the 3d day of April A. D. 1850, having been confirmed on a former day of this-term ; and the report of said Master made herein and filed on the first day of October, A. D. 1850, having also been confirmed on a former day of this térm, except as to the said sum of five hundred dollars therein.stated as having been paid by defendant subsequent to the death of Mrs. Perkins, wife of said defend-ant: It is now thereupon further ordered, adjudged, and decreed, that the said Complainants, the said Harriet J. Fourniquet, together with the said. Edward P. Fourniquet, in right of his said wife, but to her sole and separate use; and the said Ann S. Ewing, together with the said Martin W. Ewing, in right of his,said wife, but to her sole and separate use, do have and recover of dhe. said defendant, John Perkins, the amount stated, in said first-named report, to wit, the sum of sixteen thousand nine hundred and sixty-eight dollars and seventy-six cents (¡§16,968.-76,) to be paid to the said complainants by the said defendant within thirty days hereafter, together with interest thereon at the rate of eight per cent', per annum, from the first day -of April, 1850, or in default thereof that said complainants have execution therefor. It is further Ordered, adjudged, and decreed, that ■said complainants do recover’ of the defendant all their costs hereby in this suit incurred and herein taxed.
    November 20,1850. S. J. Gholson.
    From this decree Perkins appealed to this court.
    it was argued by Mr. Johnson and Mr. Soule, for the appellant, and- Mr. Henderson, for the appellees.
    It is not necessary to state the points and arguments of the counsel relative, to the community of acquets and gains under the law of Louisiana, and how far that law would reach investments in Mississippi; but as the decision of the court turned entirely Upon the validity of the releases (one of which is- inserted in 7 Howard, and both in the present opinion,) the notice of the argument will be confined entirely to that subject.

      The counsel for the appellant considered the releases in the following point of view:
    The bill charges'that these releases were obtained by concealment, fraud, &c. The answer denies th.e charge in the most positive terms, and not a shadow of proof has been given of its truth.
    The releases themselves are as. full and thorough acquittances of all responsibility on the part of the respondent, as could have been drafted, as will be seen by reference thereto.
    To the release of E. P. Fourniquet and wife to J. Perkins, dated Natchez, May 27, 1834.
    To the release from M.' W. Ewing and wife, dated April 11, . 1828.
    To the release o,f Benjamin S. and Mary C. Bynum, (heirs, but not parties to this suit,) April 10, 1829.
    Act of confirmation by Mary C. and Thomas P. Eskridge, dated April 9,1832.
    For what were these releases made ? Surely not to cover the land and slaves in Louisiana of the deceased parents of the releasors, because there had been previously (in 1827) a judicial partition and distribution of their patrimonial estate, which had been homologated, and had all the force of “the thing adjudged;” and Perkins had been fully discharged before any of these releases were executed. Then, these releases must have been wholly supererogatory in reference to the land and slaves in Louisiana; and the question arises, what could they have been designed to cover and include, unless it were such personal effects as may have remained,' after all the debts and expenses of the marriage and the education and maintenance of the Bynum heirs had been defrayed ?
    As to the validity ánd effect of these releases, one of them has been attested and adjudicated, not only in the Ninth Judicial District of Louisiana, and before a jury, but in the Sunreme Court of the United States.
    Howard’s Reports, vol. 7, contains the recitals, in Mr. Justice Daniel’s opinion, showing that Fourniquet and wife sued Perkins for large amounts of property, spoliations, &c,, in Concordia, Louisiana, in December, 1838, and that judgment was rendered against them in December, 1840; and that, having brought suit against him in 1844, in the United States Circuit Court for Louisiana, Perkins plbaded that judgment in bar, and prevailed both in the Circuit and Supreme Courts of the United States.
    True, the opinion of Judge Daniel was rejected, as evidence, in the United States Circuit Court for Mississippi; but whether the objection was well taken or not, the weight of it, as an argument and an authority directly in point, could not be destroyed, and it applies with equal force to the release of Ewing and wife. See the case at large in 7 How; 160.
    “ The gratuitous remission of a debt, is as valuable as a release for a valuable consideration, and may be express or implied.” Civil Code, Art. 2195.
    “ The pactum remissorium, pactum de non petendo, was binding under the Roman law; and all that was required to give.it validity, was a simple convention. Mouton v. Noble, 1 Annual Reports, 194.
    See also the case of Morgan v. Morgan, 5 Annual Rep. 230. [An authentic MS. copy of the record in this case, is on file at the Supreme Court of the United States, showing remarkable coincidences between the release in that case and the case at bar.]
    The law presumes the acceptance of the remission of a debt, and it cannot be revoked by creditors. Civil Code, 21, 97; Lee v. Ferguson, 5 Annual Rep. 533.
    For the force, as testimony, of sworn answers in chancery, see 2 Story’s Equity Jurisprudence, §§ 1528, 9, 30.
    m '■ m

      Mr. Henderson, for the appellees.
    We come next to consider the question' of the receipts and releases, interposed in bar.
    The bill charges fraud and concealment in obtaining from complainants these receipts, and declares the matters sought to be recovered in this suit, were not, at the time of these receipts, or at any other time, ever accounted for, but by defendants were concealed and kept back; and they require and demand of defendant, should he offer said receipts in bar, that he produce the account, and the items thereof rendered, for which said receipts were given. .
    The defendant tenders the releases as exhibits, with his answer, and states that he “ relies upon said releases as if formally pleaded in bar,” and denies, generally, they were obtained by fraud or concealment. They are found in. the record, but in no form of plea. Now, while rule 39 permits a defendant to avail himself in his answer of matters in bar, if the matter be such as could be plead in bar, yet the rule does not allow that to subserve as a bar in an answer, which could not have been, plead in bar. The alleged release of Harriet Fourniquet is not good in bar, .because the deed of a. married woman, not proven or- acknowledged' on privy examination, and therefore void. Agricultural Bank v. Rice, 4 How. 241, 242; 12 Pet. 375; 10 Pet. 20 and 22.
    This release is -void, also, because executed by her while a 'minor, as charged in her bill, and admitted by defendant’s answer to interrogatory 4. Her subsequent recognition • of it, before a Judge in Louisiana, (not'on private examination,) gave it no additional validity. Void as thé deed of a married woman in its execution, it copld not be validated by her subsequent recognition of it.
    The receipt of Ewing and wife is not under seal, and therefore not good in plea of bar as a release. Story, Eq. Pl. § 796; Mit. Pl. marg. 263.
    But complainants have impeached, by their bill, the integrity of these receipts, so far as offered by defendant to evidence a release, or settlement, of the community sued for, and call upon defendant for a disclosure of the consideration on which they were executed.
    The defendant denies fraud generally in their procurement, but makes no disclosure of the matters or accounts settled by the recei pts. Nor does he venture to affirm they were given on settlement of the community; yet tenders them as “ releases, as if formally pleaded in bar,” notwithstanding.
    Such form of pleading and issue make no ground of defence, and must be overruled and disregarded, as if not in the record. Story, Eq. Pl. § 796, 797; Mit. Pl. marg. 261, 262, 263.
    If it be said, however, that these receipts were executed for the meridian of Louisiana, and not intended for common-law instruments, (though both made in Mississippi,) their deficiency in this aspect is still more palpable. For, professing to evidence the settlement of Perkins’s account as tutor or guardian of the Bynum heirs, they are “ null and void,” because they do not show, on their face, that a full account and a delivery of vouchers was rendered the wards, ten days previous to signing the receipts. O. C. 72, art. 76; 4 How. U. S. R. 561; C. C. art. 355; 4 Rob. 296, 297.
    And the civil-law doctrine of “ transactions” and “remission” of debts, was never extended, and will not be in equity, to settlements of guardians with their wards.
    And the defendant’s answer in this case is quite demonstrative, that he never settled in any way with complainants for their mother’s community.. He says, “By reason of their domicil being in the State of Mississippi, respondent has always acted under the belief, and now submits to the court, by way of defence to the claim of complainants, that there was no community .of acquets and gains of property lying in Louisiana, between respondent and his said wife Mary, under the laws of Louisiana.”
    If there be any meaning in language, this surrenders the fact, and admits the community not settled for.
    For, if Perkins “ always acted under this belief,” he so acted ' when he obtained these receipts. It is conclusive, therefore, he did not settle with ór compensate complainants for the community. And he waives such defence in this part of his answer, by submitting the question of community or no community to the court, and to abide that issue. If he has bought out this claim, why not show the evidence of his purchase, rather than subm.it the issue to the court that it never existed ?
    But the receipt of Ewing and wife .is also express and conclusive, against this pretence of defendant. It particularly and exactly enumerates -what things were settled for, and what he received. And by reference to the inventories returned by Perkins himself, the eighteen slaves, specified in the receipt, are found in inventories. The cattle, mules, and tools, all are there shown, and all of the Bynum estate. There can be no mistake in this proof. And it was no such grace on Perkins’s part, that he relaxed his hold on this fraction of their father’s estate, as thereby to absolve himself from commdnity.
    But the record, elsewhere, abounds with evidence on this point. On pages 71 to 76, defendant sets forth the several parcels of land purchased by him.chiefly in Louisiana, during the coverture ; and all such are community lands, if a marital partnership existed. And Mrs. Perkins’s children were jointly seised of the. title with him, at the instant of her death. Now can such receipts as here exhibited, by any stretch of presumption, be regarded as transmissive of their joint title, with Perkins, to these lands ? Even if Intended as such, they obviously fail as relinquishments of title to rfeal estate.
    , But had this been the purpose, it is incredible of belief, they would have been so executed.. For the title which the heirs of Mrs. Perkins have in her community, would sustain an ejectment against Perkins, or even against a third possessor under Perkins without notice. See 5 An. Rep. 389; 2 Id. 261.
    Now these Mississippi investments of $29,000, were but part of the whole, and with like certainty were not accounted for in these receipts.
    They do not show they included or comprehended the community, but we think on their face they reasonably show the contrary, and the defendant shrinks from the averment that they did or do include it. He offers no proof that they did, and he evades reply, when called on to show the matters and things on which they rested, and says he1 always acted under the belief there was no community, and submits that issue to thé court. Aside from their defective execution to make them releases, and apart from the mispleading them in bar, we think it impossible to believe they did settle for community, or were intended, by those who gave them, to comprehend that subject.

      The rule in equity, and of the most common justice, then applies, that these receipts shall be held valid only for the matters and things on which they computed. And this, with such legal distrust'as the relations of the parties imply. 10 How. 185, 186; 8 How. 158; 4 How. 561; 16 Pet. 276, 7, 8, 9; 2 Sum. 11; 3 Story, R. 268, 9; 1 Ed. Ch. R. 38, 39; 1 Ch. & Lef. 226.
    The cáse of Fourniquet and wife v. Perkins, (7 How. 160,) is referred to and relied on as deciding these receipts valid' against us. But the case quoted decides no such principle. It sustained a plea of res judicata. And the case plead in bar, did interpose these receipts, among other matters of defence, in a suit brought exclusively to obtain against Perkins a new account of his administration of the Bynum estates, but not for community. We were defeated in that case. And Judge Daniel said, from in-, spection of the record, that it did not appear we were defeated merely'on the receipts, but on the merits. We admitted then, and' admit now, these receipts were given to close Perkins’s administration of the Bynum estate, but not community in the Perkins estate. The decision of that case does not therefore touch these receipts. They have only been decided in this case below, and'in the case of Perkins v. Fourniquet et al. (6 How. 206); and in both decisions it has been held that these receipts did not' bar this action for community.
    One other, and the last poiiit, on this subject. Both these receipts recite and count on administrative settlements, by Perkihs, of Benjamin Bynum’s estate, or of Mrs. Perkins’s separate estate, in his capacity of guardian, curator, or executor.
    Now it is familiar to the jurisprudence- of Louisiana, as shown in the decisions herein quoted^ that the formal and official administration of the wife’s estáte extends only to her separate estate, and not to her community. Perkins, in this case, as surviving partner, would, and did, have the settlement of community, and not as curator of the Bynum estate, or as administrator or executor of his wife’s estate. His right, power, and duty to settle the community, resulted wholly and .exclusively from his -being the surviving partner in community. And his accountability for the wife’s share in community was directed with her heirs, and not her administrator. And this is manifest from the right of the heirs to renounce community. O. C. 338, arts. 72, 75, 82, 84.
    And there is no fact or circumstance - in this casé that points, in the remotest degree, to any settlement made by Perkins as surviving partner of the community. No partition with the heirs is shown; no purchase from them of their undivided portion is shown; and, upon all known principles of human action, it is impossible to believe that either of these things was done,' and being done, that the evidence of it was incorporated in these receipts.
   Mr. Justice WAYNE

delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the District of Mississippi, thé District Judge presiding.

The suit was brought in the Vice-Chancery Court of Mississippi, and was transferred to the Circuit .Court, upon the application of the respondent, under the 12th section of the act of - September 24th, 1789, to establish the judicial courts of the United States.

Harriet J. Fourniquet and Anne M. Ewing are the stepdaughters of the respondent, from his intermarriage with their mother, Mary Bynum. She was the widow of their father, Benjamin Bynum.

The object of the suit was to recover their portion of $39,600, alleged by them to be marital community gams of the respondent and their mother, which they charge he invested in Mississippi, and was in hand at the death of their mother. The respondent is charged with having had no means of his own to make such investments; that the money was derived from the cotton estate in Louisiana; that’ the same, by the laws of that State, became a community of acquets and gains, one half of which, upon the death of their mother, became theirs and her other heirs; and they charge him, further, with having fraudulently taken the money derived from the Louisiana property, into Mississippi, to invest it there, in order to give him undue advantages over his wife’s and their interest in the fund. It is said, that at the death of their mother there were then living four children of the first husband, and three by the respondent. Three of the four and two of the three are still living. Mary B. Eskridge, one of the survivors of the Bynum children, and John Perkins and William Perkins, adults and .heirs of the complainant, do not concur with them in their suit, and for that reason are riot made parties. The respondent, besides being charged generally with fraud, is especially so in reference to certain receipts and releases, which these complainants gave to him, which they now say were obtained by concealment and circumvention.

The respondent, in. his answer to the bill, admits his marriage in Louisiana, at the time and place stated. That he rémoved to Mississippi with his wife in 1818; that their 'domicil was there continued to be kept during the coverture, and that their removal was hot only with the consent of the wife, but in pursuance of an understanding between them before their marriage took place. He denies that’any community of gains was established conventionally, or that it legally could occur qnder the law of Louisiana, on account of the residence of himself and wife in that State when they were married, because it was their intention, before the marriage took place, to remove into Mississippi. He denies that any money, invested by him in lands in Mississippi, belonged, either legally or equitably, to his wife in either State; and asserts, even if there was a marital community between them, he was entitled to dispose - of the gains as- he pleased, without any liability, under the law of Louisiana, to account for the same to his wife or her representatives. He denies the charge, that he was without productive property or available means to purchase the property in Mississippi. That property consists of several tracts of land and the improvements put upon them, as is said, by community funds. The tract upon which the improvements were put contained one hundred acres. It was bought from Arthur Mahan, on the 30th October,, 1818, for $9,926. It was improved for a residence for the respondent with his family, including the,children of the wife by the first husband. There- was another tract, containing 2,100 acres, bought by the respondent from Elihu Hall -Bay, in' January, 1819, for $5,000. There were two other purchases,— one of them, a lot in Natchez, bought from Walter S. Parker, in March, 1823, for $600; and the other is a purchase from Sugar Zenoiyin March, 1824, for $1,000. The aggregate sum given for these lands, and the improvements upon the first, amount to $39,600. • The complainants allege, that they have a right to elect' to take their interest in them in money, with interest upon the amount from the time of their mother’s death.

To this answer, the complainants filed the general replication.

The case was tried, and the court below gave an interlocutory decree against the respondent. It declares -that a community of gains had existed between the respondent and his wife during the marriage. That its resources were altogether in Louisiana, and that the respondent had invested from the gains large sums in the purchase and improvement of real estate in Mississippi, and- that it was held by him, in 1824, when the marriage was dissolved by the death of Mrs. Perkins. The court also referred the matter to a master, to take an account conformably to its decree. In the course of the reference, the master sustained an objection to an allowance for which the complainants contended. It wap submitted to the court, whether he had properly refused it. He was ’instructed, that it was only necessary for him to ascertain the amount of the funds vested by the rpspondent in’ Mississippi during the community; and that, as,to the sofirce from which Perkins derived them, the court would decide under all the proof. The master proceeded accordingly. He reported, without any proof of the source from which Mr. Parkins obtained the money, that $16,968.76 was due to the complainants. The report was subsequently confirmed, and the court gave a final decree for them for the sum just stated, with interest, at 8 per cent, from the 1st April, 1850.

It dpes not appear that the court’s attention had been particularly directed to the releases which the complainants admit they gave to the respondent, and which he says were given to him with a positive denial of the statement, that he obtained them by fraud, concealment, and circumvention.

If it had been, we think that the court would have determined the effect of the releases upon the case before it gave its interlocutory decree, and that it would not have made a final decree upon the master’s report.

We proceed to give pur view of these releases.

The first, from Ewing and wife, was executed on the 11th April, 1828. Fourniquet and wife executed theirs on the 27th May, 1834, within a month of six years after the other.

They are as follows:

Release from E. P. Fourniquet et ux. to John Perkins.

Received, Natchez, May 27th, 1834, of John Perkins, on settlement of all accounts, debts, dues, and demands, whatever, up to the present day, one hundred dollars in full, having, on a previous occasion, received from him, as the guardian of my wife, Mrs. Harriet J. Fourniquet, late Miss Bynum, all the estate, portion,, and share, which she inherited by the death of her late father, Benjamin Bynum, late of Concordia, Louisiana, deceased, or her mother, Mrs. Mary Perkins, of the county of' Adams, and State of Mississippi, and brother, Benjamin S. Bynum, of the county of Clairborne, and State last aforesaid, deceased; and do, by these presents, jointly with my said wife, release and forever discharge the said Perkins, from all and every claim which she, 'or either of us, might or could have against him,-the said Perkins, either as guardian-or otherwise, growing out of the estates aforesaid, or in any other matter and shape whatsoever, and forever exonerate him, by these presents, his heirs and executors and administrators therefrom.

[In] witness whereof, we have hereunto set our hands and seals, the day and year first above written, to wit, in the year of our Lord, one thousand eight hundred and -thirty-four, in the presence of Elijah Bell and John E. Maddux, whose names are hereunto subscribed, as witnesses hereunto, the said John Perkins being also personally present, and by these presents aocept-

E. P. Fourniquet. seal.'

Harriet Fourniquet. seal.

John Perkins. [seal.

Witnessed, signed, sealed, and delivered, in the presence of— Elijah Bell,

John E. Maddux.

Release from M. W. Ewing to John Perkins.

Received of John Perkins two negro slaves, Lewis and Anderson, also his draft on A. Fisk, for four hundred and seventy dollars, thirty-four cents, in one , hundred and twenty days, indorsed by R. M. Gaines; which, when paid, will be in full of all claims and demands, of every kind and description, which we, or either of us, may have against said Perkins individually, or against him as curator of the estates of Benjamin Bynum and Mary Perkins, in the parish of Concordia, State of Louisiana, or as executor of the will of the said Mary Perkins, dated March 30, 1822, and in full* of all -claims of every kind, which we or either of us, may have against said Perkins, in any way whatever; we having received from said Perkins, heretofore, the following named slaves, to wit: Judah Myers, aged 25 years; Edward, about 4 years; Harry, about 7 months; Little Daniel, about 16 years.; Patrick, 13 years; Lewis 5 years; Big Daniel, 50 years-; Big Sarah Miambo, about 50 years; Ned, 16 years ; Polly, 14 years; Frank, about 50 years; Maria, his Wife, 37 years old; Frank, aged about 1 year; Fanny, about 7; Samuel, about 19 years. Also two mules, thirty head of cattle,.and a chest of tools; and the Said Perkins accepts hereof, as a full satisfaction and discharge from the said Martin W. Ewing, and Anne, his wife, in the premises.

Witness our hands, this 11th day of April, A. D. 1828.

Martin W. Ewing,

Anne Ewing.

Att. R. M. Gaines. John Perkins.

The operative words óf these releases are as full as they can be, and they cover the subject-matter for which the complainants brought the suit.

We have carefully examined and considered this record, without finding in it any thing against the* fairness of the releases. The complainants do not give any proof against it. Nothing is in proof from which it can be inferred that they were given in ignorance of their- rights in the - estates of. Benjamin S. Bynum and Mary Bynum when the releases were made, or that they were in any way circumvented by the respondent, 'fheir testimony in the case is exclusively upon the community- of gains, and upon the inability of the respondent to make such purchases and improvements from his own means.

It consists of copies of conveyances for the property bought, of depositions, in which there is not ’a word relating to the releases, and of answers by the respondent to other suits against him, one of which was a suit , in equity brought by these complainants in the Circuit Court of the United States, in Louisiana.

In that answer, may be found a narrative of the respondent’s business connection, and dealings with the estate of Benjamin S. Bynum and that of his "widow, afterwards the wifé of the respondent. It shows that he rendered an account of both. That it was done in an open manner and with an intention that it should be examined by those who were interested. It is further shown, that after the accounts had been officially filed, that there was a partition of all the property among the heirs, and that it was consummated by receipts and acquittances from all of them, among them those given by -Ewing and his wife, and by Fourniquet and his wife, as they have been already recited in this opinion. The respondent also denies in that answer the charge there made by'these complainants, as-it is repeated in this suit, that these acquittances were obtained by fraud, misrepresentation, and concealment,' and avers that they were executed by the parties with a full knowledge of all their rights, and for a valuable consideration. In that case, as in this, there was no proof that those receipts or releases were fraudu-' lently obtained. The witnesses, Henderson, Montgomery, and "Walworth, in this suit, are not questioned as to the execution of the releases.' The same interrogations were put to all of them. The answers of each are very immaterial for any pur-' pokes in this suit. No one of them knew any -thing concerning the respondent’s. pecuniary situation when he married, or when he removed into Mississippi, or of. the sources from which the money came which was invested in Mississippi. The same may be said of Wren’s testimony. Loria’s testimony is as indefinite as that of the others, and he also was not questioned "concerning the execution of the releases. On the other hand, the evidence produced by the respondent in this suit, shows'that the releases were not precipitately made. That neither of the complainants gave them until after they had had time to examine his accounts, and not until they had examined them. Whatever .they may have thought of the integrity of the respondent, they did not act then as if they suspected it. We see them receiving from him-their portions of the estates, of which they were distributees, and’ other property besides, as gratuities from the respondent, and dealing with both, among themselves and with others, and acting towards the respondents as if they were content with what he had done, and with wh.at they had teeeived.

There was an. interval of live years and eleven months between the releases given by the complainants to the respondent. The accounts upon which they were given, were all that time accessible to them. The proofs show that Ewing had scanned them before he gave his release. His interest in the estates' were the same as Tourniquet's. It was a family business, talked of, no doubt, among themselves, as such matters always will be, and it cannot be supposed that Tourniquet took his wife’s portion of the estates without knowing that Ewing had given to the respondent a release when he took his wife’s part, or without having had the same means as his associate to learn the condition of the estates, and the truthfulness of. the respondent’s official .statement Of them. Their acceptance of the portions of their wives must be taken as an admission that the respondent had dealt fairly in the business, arid that he meant to do so, until they shall prove that it was his.design to cheat all of the heirs, including his own children, as well as the wives of the complainants. He may not have acted in his long management of the estates, with all caution and exactness, but nothing hag been shown in this case, in his final settlement with the heirs, that he did not mean to act with fairness and liberality, or that any one of them did not think he had done so, when they made these releases.

With the view of these releases, we think that the court erred in giving its interlocutory order for an account to be taken. We are relieved by it from considering the points which were made in the argument concerning any community of gains between the respondent and his wife. However that may have been, the releases put an end to all controversy between these parties about it. They were fully argued by counsel, as they should have been, as they could not foresee what would be our view upon the effect of the releases. We could not add any thing to the decisions of the courts of Louisiana upon connubial or legal communities of gains between husband and wife.

We are satisfied, whether it did or did not exist, that the releases given by the complainants are conclusive against them for any claim upon the respondent on account of the estates in which they -were interested. No proof having been given that these releases were obtained,by any fraud or .circumvention, we shall order the decree of the court below to be reversed, and that the bill of the complainants shall be dismissed.

Mr. Justice CUETIS dissented.

Order.

■ This cause came ón to be heard on the transcript of the record from the'Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On "consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause, be, and the same is. hereby, reversed, with costs, and that this cause be, and the same is -hereby,remanded to the said Circuit 'Court, with directions to dismiss the complainant’s bill.


source: Caselaw Access Project

author: Mr. Chief Justice T ANEY,

license: Public Domain

text:
    John Perkins, Appellant, v. Edward P. Fourniquet, and Harriet, his wife.
    The sixty-second rule of this dourt, (13 Howard,) is as follows: “In cases where a writ of error is prosecuted to the Supreme Court, and the judgment of the inferior court is affirmed, the interest shall Be calculated and levied from the date 'of the judgment Below, until the same is paid, at the same rate that similar judgments bear interest, in the courts of the State where such judgment is rendered. The Samé rule shall be applied to decrees for the payment of money, in cases in' Chancery, unless otherwise ordered by this court. This rule to take effect on the first day of December term, 1852.
    .Before this rule, interest was to be calculated at six per cent., from the date of the judgment in the'Circuit Court to the day of affirmance here; and the confirmation „of the report of the clerk, in the case o£ Mitchell v. Harmony, (13 Howard, 149,.)’ _ was under the rules then existing.
    So, Also, where a cáse from Mississippi was affirmed at December term, 1851, the mandate from this court should have been construed to allow interest at six per sent, from the date of the decree in the court below, to the date of the affirmance in this court. Therefore, it was erroneous either to allow six' per cent, until paid, or to allow the current rate of interest in Mississippi, in addition to the six per cent, allowed by this court.
    The several rúles upon this subject examined'and explained.
    This was an appeal- from the Circuit Court of the United States for the Southern District of Mississippi.
    It is stated, in the report of the preceding case, that, at December, term, 1851, a case of Fourniquet and wife, against Perkins; came, up from Mississippi, and the decree of the Circuit. Court was here affirmed by a divided court. It was, therefore, not reported.
    Thg proceedings under the mandate, and the question^ which arose thereon, are set forth in the following opinion of the court:'
   Mr. Chief Justice T ANEY,

delivered the opinion of the court.

. It appears, in this case; that on the 22d of May,. 1849, the Circuit Court for the Southern District of Mississippi, passed a decree in favor of the appellees, against the appellant, directing him to pay the sum of $16,496.61, within thirty days thereafter, with legal interest, from the date of the said decree, or, in default thereof, the appellees to have execution against the appellant.

This decree was affirmed at the last term of - this court, with costs and damages, at the rate of six per cent.'per annum '; and a mandate issued tó the Circuit Court reciting the judgment of this court, and directing it to be carried into execution.

After this mandate was filed in the Circuit Court, the appellees obtained an execution against the appellant, by which the .marshal was commanded to levy the amount of the original judgment in the Circuit Court, with the Mississippi interest of eight per cent., and damages at the rate of six per cent, in addition, making together, fourteen per cent., from the date of1 the original judgment, until paid.-

The appellant insisted that, under the mandate, he was bound to. pay nothing more than damages at the rate of six per cent, on the original decree, from. the time it was rendered. And, acting upon this construction of the judgment of this court, and supposing himself chargeable with the six per cent, damages, until the decree was' satisfied, he payed the marshal, on the 12th of May, 1852, the amount he, supposed to be dire, calculating the interest up to that time, and, by some errpr in the reckoning, he paid a small sum over. -And, as the appellees still insisted upon levying the. whole amount for which they had obtained process of execution, he moved the Circuit Court to refer it to a Commissioner, to report the amount due under the judgment of this court, arid how much, if- any, he had overpaid in his settlement with the marshal. It was- admitted that the costs were all paid. .The only controversy was about the interest and damages, as. above stated.

The commissioner reported that, according' to the ¡basis of .settlement claimed by the appellant, he had overpaid the amount due on the decree, $61.50 ; but that, according to the construction-of the mandate insisted on by the appellees, there was still due to them a balance of $3,831.02.

Upon-this report, the appellant moved the court to order satisfaction of the decree to be eritered of record; or, to quash the execution then in the hands of the marshal, and order. the clerk of the court to issue no furthe fi. fa. on the decree; and, also, for an order on the marshal., .or the appellees, as might be proper to refund the money overpaid.

But the court overruled, the motion, ordering, at.the same time,-that no further execution should issue, until the appellant had a reasonable time to present an appeal to this court. .And this appeal was .accordingly taken.

An objection has-been made to the manner in which thisca3e has been brought before the court, and a motion made to dismiss, upon the ground that an appeal will not lie from this decision of' the Circuit Court.

This objection to the form of proceeding, involves nothing more than a question of practice. The mandate from this court left nothing to the judgment and discretion of the Circuit Court, but directed it to carry into execution the decree of this court, which was recited in the mandate.' And if the decree of this court has been misunderstood, or misconstrued, by the court below, to the injury of either party, we see no valid objection to an appeal to this court, in order to have the error corrected. The question is merely1 as to the form of proceeding which this court should adopt, to enforce the execution of its. own mandate in the court below. The subject might, without doubt, be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below, is equally convenient and suitable; and, perhaps, more So, in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term. The appeal certainly would not stay proceedings. And it would be the duty of the Circuit Court, notwithstanding the appeal, to proceed to execute the judgment of this court, unless/ as in this case, he entertained doubts of its construction and meaning, and deemed it, therefore, just and equitable to suspend its execution, until the decision of this court could be had in the premises.

In the case before us, however, there was substantially an equity proceeding and fin'd decree, after the mandate was .filed. It is true, they were summary, and necessarily so, as the matters in dispute under the execution were brought before the court by motion. But the claims of the respective parties were referred to a Commissioner to examine and report; he made his report, and the court decided upon it. This decision,' although briefly stated,, was, in substance, a final decree upon the matters ip controversy. It might, therefore, under the act of Congress, be regarded as such, and revised accordingly, by an appeal to this court. Plenary and formal proceedings are not necessary, and never Required, when the dispute is confined to matters arising under process of execution. They are more conveniently and as fully brought before the court, by a summary proceeding on motion. .

The questions in controversy in the Circuit Court, and its decision upon them, are, therefore regularly before us.

The difficulty in that court, seems to have arisen from supposing that the act of 1842 applied tp judgments and decrees in this court. And this, we presume, occasioned the error it committed, in the construction and execution of the decree and mandate in question.

■ The act of 1842 does not eihbrace cases in equity; -n'Or does it extend to either judgments or decrees, in this court.. It is .confined, in plain terms, to judgments at law, in the circuit and district courts. It places the judgments of these courts* in respect to interest, upon the same footing with the judgments of the State courts. And where, by the law of .the State, the judgment of a court .carries a certain interest until paid, the former rule and the same rate of interest is to be allowed in the circuit and district courts of the United States. And the mar-shall is directed to levy it on process of execution, wherever it can be so levied on a judgment in the State Court. I^i such cases the judgment bears interest by force of the law, although, upon the face of it, it may not purport to carry interest. Upon common-law principles a judgment does not carry interest. It is true, that damages may be recovered for the detention of the debt, in an action on the judgment. But previous to the act of 1842, neither interest nor damages, for the detention of the debt, could have been levied under process of. execution, upon the judgment of a circuit or district court of the United States.

But the act of 1842, does not speak of iuterest or damages upon the judgments of this court, nor does it repeal the 23d section of the act of 1789. This section provides, that when a judgment or decree is affirmed here, this court is directed to adjudge or decree to the respondent in error, just damages for his delay, and single or double costs, at their discretion. Under this law there is no distinction made between cases in equity, and at law. In either of them, the damages to be allowed, in addition to the amount found to be due by the judgment or decree of the court below, is confided to the judicial discretion of this court. And the 17th, 18th, and 20th rules were adopted in pursuance of this power.

These rules have been in force, and -acted on by- the court, since 1807, when the 20th rule was adopted, until the new rule, upon'this subject was made at the close of the last term. And the' change then made was not occasioned by any supposed Repugnancy between them and the act of 1842. But because the court deemed it just to place the judgments in this court upon the same footing with the judgments in the circuit and district courts; and that suitors in the courts of the. United States, should stand on the same ground with suitor^ in the State courts in its appellate, as well as in its inferior tribunals. In adopting the new rule this court exercised /the same power which it had exercised in adopting the former rules,' that is, the discretionary power, conferred by the act of 1789, as hereinbefore mentioned.

The 17th rule provides, that when a case appears to be brought merely for delay, damages shall be awarded at the rate of ten per cent, on the amount of the judgment; and by the 18th rule, the damages are to be at the rate of six per cent, when it appears that th ere is a real controversy.

These 1 wo rules were passed in 1803. And as some difficulty arose as to the time for which these damages were to be computed, the 23d rule was afterwards (1807) adopted, and provides,- that the damages allowed by the two former rules shall be calculated to the day of the affirmance of the judgment in this court.

The question as to the operation of the act of 1842, upon the 18th and 20th rules, was brought to the consideration of the court at the last term, in the case of Mitchell v. Harmony. The judgment brought up by the writ of error, was rendered in the Circuit Court of New York, and was affirmed in this court. The sum recovered was large, and the interest, even for a short time, was therefore important. And the counsel for Harmony, the defendant in error, moved the court to allow him the New York interest of seven per cent, upon the amount of the judgment, and that the interest should run until the judgment was paid. But as the rules above mentioned were still in force, the court held, that he was entitled only to six per cent., to be calculated from the date of the judgment in the Cirquit Court, to the day of affirmance here.

The case now before us, was decided in the early part of the last term, before the case of Mitchell v. Harmony, and consequently falls within- the operation of the same rules, and damages upon the affirmance of the decree must be calculated in like manner.

Indeed, in the New York case, the claim for interest stood on stronger ground than in the present one, for that was an action at law. The act of 1842, therefore, applied to the judgment in the Circuit Court, and it would have carried the State interest, until paid, if it- had not been brought here by writ of error. But this is a decree in equity, and not embraced In the act of 1842, and according to the settled chancery practice, no interest or damages could have been levied under process of execution, upon the amount ascertained to be due, and decreed to be paid, if there had been no appeal; 2 Ves. 157, 168, n. 1, Sumn. Ed.; 2 Dan. Chan. Plead, and Prac. 1442, 1437, 1438. Nor could any damages or interest have been given on its affirmance here, but for the. discretionary power vested in this court by the acti of 1789 That discretion, as we have already said, extends to de* crees in equity, as well as judgments at law. And the rules have always been applied to both, unless otherwise specially ordered.

It follows, from what we have said, that the appellees, upon the affirmance of the decree, were entitled to damages at the rate of six per cent., to be calculated from the date of the decree to the date of the - affirmance; and to no 'further interest or damages. The decree was passed by the Circuit Court, on the 22d day of May, 1849, for $16,496.61, and was affirmed in this court on the 24th of December, 1851. The interest from th,e date of the decree to the time of affirmance in' this court, is $2,562.37,-making together the aggregate sum of $19,058.98. This amount, together with' the costs, is all that the appellees were entitled to recover under the judgment and mandate of this court. It' appears, however, that the marshal has received* under the process of execution, $19,500, in addition to the costs, and paid it over to the solicitor of the appellees.

They have, therefore, received $441.02 more than they were entitled, and that sum must be refunded to the appellant.

It. is proper to say, that the mandate in question .was in the usual form, and the same with the mandate in Mitchel v. Harmony, and indeed the same that has been used since the adoption of the rules above mentioned. And it never has been supposed by this court to sanction the collection of State interest On the judgment; and still less the unprecedented interest and damages claimed in this case, amounting together to fourteen per cent.

The decree of the Circuit Court, overruling the motion of the appellant, mpst therefore be reversed, and a mandate issued, directing the court below to enter the decree' satisfied, and also to order and direct the appellees to repay to the appellant the sum of $441.02, with the State interest thereon of eight per cent, from the time it was received by tíieir solicitor from the marshal.

Order.

' 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 Mississippi, and was argued by counsel. On consideration whereof, it is ordered, adjudged, and decreed, that the decree of the Circuit Court overruling the motion of the appellant, be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with instructions to that court to enter the decree rendered by that court on the 22d day of May, A. D. 1849, for $16,496.61, with legal interest from said date, satisfied, and to order and direct the appellees to repay to the appellant the sum of $441.02, with the State interest thereon, of eight per cent, from the time jit was received by their solicitor from the marshal.


author: Mr. Justice DANIEL

text:
    Benjamin D. Harris, Plaintiff in error, v. William Hardeman, Henry R. W. Hill, Cotesworth P. Smith, and Henry A. Moore.
    A statute of Mississippi directs that where the defendant cannot he found, a writ of . capias ad respondendum shall be served, by leaving a copy thereof with the wife of the defendant, or some free white person above the age of sixteen years, then and títere being one of the family of the defendant, and found at his usual place of abode, or leaving a copy thereof at some public place, at the dwtelling-house or other known place of residence of such defendant, he being from home, and no such-free white person being found there willing to receive the same.
    The Circuit Court of the United States adopted a rule • that the capias should be served personally; or, if the defendant be not found, by leaving a copy thereof at his or her residente, or usual place of abode, at least twenty days before the return day thereof.
    The marshal made the following return to a writ of capias: “ Executed on the defendant Hardeman, by leaving .a true copy at his residence.”
    This service was neither in conformity with the statute nor the rule.
    Therefore, when the court gave judgment, by default, against Hardeman, and an execution was issued, upon which a forthcoming bond was given, and another execution issued, and at a subsequent day the court quashed the proceedings, and set aside the judgment by default, this order was correct.
    "When the judgment by default was given, the court was not in a condition to exercise jurisdiction over the defendant, because'there was no regular service of process, actual or constructive.
    The cases upon this point, examined.
    Moreover, when the proceedings wore quashed, they were still in fieri, and not terminated ; and any irregularity could be conected, on motion.
    This case was brought up, by writ of error, from the Circuit Court of the. United States for the Southern District of Mississippi.
    The facts are stated in the opinion, of the court.
    It was argued by Mr. Nelson for the plaintiff in error, and Mr. Freeman for the defendant.

      Mr. Nelson contended that the judgment of the court below was erroneous-, and referred to the following authorities.
    To show that the bond was regularly taken under the Mississippi statute. Hutch. Code, 910, Art. 6, sec. 2; Howard & Hutch. 653, sec. 73.
    The ground of the motion made by the defendants in error, :n the ¿court below, was, that the original judgment was void for want of notice; and that being void, the process issued upon it and the bond taken under that process, were nullities.
    It may be true that the return of the service of notice was insufficient. Smith v. Cohen, 3 Howard, (Miss.) 35; Tomlinson v. Hoyt, 1 Smedes & Marsh. 515; Eskridge v. Jones, Id. 595.
    But that was matter to be considered and passed upon by the court rendering the judgment. Fatheree v. Long, 5 Howard, (Miss.) 661; Smith v. Bradley, 6 Smedes & Marsh. 492.
    Besides, the defendants were estopped, by the execution of the bond, from denying the validity of the judgment and the-execution. Bank U. S. v. Patton, 5 Howard, (Miss.) 200; Miller v. Patten, 3 Smedes & Marsh. 463; Keringham v. Scanland, 6 Howard, (Miss.) 540; Field v. Morse, 1 Smedes & Marsh. 347; Conn v. Pender, 2 Smedes & Marsh. 386; Pender v. Felton, 2 Id. 535; Clowe v. Tharpe, 3 Id. 64; McCoul v. Ellet, 8 Id. 505.
    The bond was regularly forfeited. Barker v. The Planters Bank, 5 Howard, (Miss.) 566; Puckett v. Graves, 6 Smedes & Marsh. 384; Talbert v. Melton, 9 Id. 9; Dowd v. Hunt, 10 Id. 414.
    And the forfeiture of the bond extinguished the original judgment. Davis v. Dixon, 1 Howard, (Miss.) 64; Weathersby v. Proby, Id. 98; Witherspoon v. Spring, 3 Id. 60; Binny v. Stanton, 2 Smedes & Marsh. 457.
    Moreover, the return was in conformity with the rule of court.
    To show the validity of said rule, the plaintiff in error relied upon the act of. Congress of the 24th September, 1789, sec. 34, (Laws U. S. vol. 1, 93); Act of 2d March, 1793, sec. 7, (Laws U. S. vol. 1, 335); Act of 19th May, (Laws U. S. vol. 4) 279); Wayman v. Southard, 10 Wheaton, 1; Beers v. Haughton, 9 Peters, 330, 360, 361; Fullerton v. Bank U. S. 1 Peters, Sup. Ct. Rep. 612; Williams v. Bank U. S. 2 Id. 96; Amiss v. Smith, 16 Peters, 303.

      Mr. Freeman, for defendant in err,or.
    In this case, a motion was made in the court below, to. quash the forthcoming bond, and vacate the original, judgment. It was sustained upon the ground of the judgment being a nullity, ttiere having been no service of process upon Hardeman, and no appearance entered for him.
    It will be conceded, that if there be no notice, actual or- constructive, the judgment is a nullity. 4 Peters’s Rep. 474; 2 Yerger’s Rep. 484; 11 Wendell’s Rep. 652; 15 Johnson’s Rep. 141; 1 Smedes & Marshall’s (Miss.) Rep. 351. There was no “ actual service ” of process on Hardeman, as is shown by the marshal’s return. Did he have constructive notice ? The statute of Mississippi provides, when the defendant is .not found, that constructive service may be made, and points but the mode. Howard & Hutchinson’s Dig. 583, sec. 27. The statute was not complied with in executing the writ in this case. It was served by leaving a copy at defendant’s residence. And is not even dated. In construing this statute, the court’ of last resort in Mississippi, have several times held such service to be bad. As, for example, in the case of Smith v. Cohea, (3 Howard’s Miss. Rep. 35,) it is held that a return on a writ “'executed by leaving a copy at the boarding-house of the defendant,” is insufficient. So, also, in the case of Fatheree v. Long, (5 Howard’s. Miss. Rep. 661,) it is held that the return “ executed by leaving a copy at the defendant’s house,” is bad. And the court goes on to say, that when the service is not personal, the return must show that the requirements of the statute -were complied with.. A similar exposition of .the statute was given in the cases of Tomlinson v. Hoyt, and Eskridge v. Jones, 1 Smedes & Marshall’s Rep. 515 and 595.
    Had this motion been made at the term next succeeding that at which the judgment was rendered, no one would doubt Hardeman’s right to the relief sought by it. Does the giving "and forfeiture of the forthcoming bond, and the lapse of time, bar his right ?
    It is believed that if the giving and forfeiture' of the forthcoming bond does not bar, the mere lapse of time cannot. For there is no time limited by the statute within which such a motion may be made. That the giving and forféiture of the forthcoming bond interpose no obstacle to the motion, is clear. It is true, the court of last resort- in Mississippi, has frequently decided that a motion to quash a forthcoming bond, must be made at the term to which it is returnable. 6 Howard’s Miss. Rep. 540; 1 Smedes & Marshall’s Rep, 347; Id. 386. Yet the same, court, has held that when the judgment is absolutely void for want of jurisdiction in the court rendering it, either of the subject-matter, or over the parties, the forthcoming bond is absolutely void also, and subject to be quashed, on motion, at any time, either, at, or subsequent to the return term. Buckingham v. Bailey, 4 Smedes & Marshall’s Rep. 538.
    A stronger reason may- be added in this court. Here, the forthcoming bond is treated and considered as part of the process of the court. 16 Peters’s Rep. 312, 313. In this case, that process is founded upon a judgment confessedly void. The court can always control its own process; and will never permit void writs to be issued and executed, when brought to its attention. And it can make no difference whether the effort to. resist the issuance and execution of such process is made within one, or after a lapse of ten years, from the date of the void judgment.
    A rule of court, adopted by the District Judge, (Judge Adams,) is relied on to show that the execution of the process upon Hardeman, was sufficient. Upon this, I remark:
    1. That even if the rule be valid, the service is not good, for it has no date; and it does not appear, therefore, that it was executed “ fifteen days ” before court, so as to give jurisdiction of the person.
    2. The District Judge has no power to adopt such a rule.- .16 Peters’s Rep. 314. The decision of the Circuit Court should therefore be affirmed.
   Mr. Justice DANIEL

delivered the opinion of the court.

The defendants in error moved the Circuit Court.to quash a forthcoming bond, executed by the defendants to the plaintiff; .and to set aside the judgment on which the bond was founded, upon the grounds that the forthcoming bond was taken in execution of a judgment entered against the defendant Hardeman, as by default, when in truth there had been no' service of original or mesne process upon him to warrant such a judgment. The facts and proceedings in this case, as disclosed by the record, are as follow: The plaintiff in error, in March, 1839, instituted in the Circuit Court an action ón a promissory note against the' defendant and three .others; and upon the writ sued out in that action, the marshal, on the 9th of April, .made a return in these words : “ Executed on the defendant Hardeman, by leaving a true copy at his residence.” Upon this return of the officer, at the next succeeding or return term of the court, in May, 1839, ,a judgment by default for want of appearance, was taken against the defendant Hardeman for the amount of the note, with interest and costs. Amongst other'pfoceedings upon this judgment, a writ of fieri facias was sued- out in M.arch, 1840, was levied on sundry slaves, the property of Hardeman, and the forthcoming bond in question executed by him on the 20th of April, 1840. In pursuance of this forthcoming bond another fieri facias was sued out on the 11th of June, 1840, and upon this last writ was indorsed on the 8th of October, 1840, a cessat executio by the-plaintiff’s attorney.

By the statute of Mississippi regulating proceedings in courts of law, the following modes for the service of process-in certain cases, are prescribed: “All writs of scire.facias and capias ad respondendum, where ' no bail is required, may be served in the following manner: -Where the defendant. cannot be found, it shall be deemed sufficient service of such writ for the sheriff or other officer to .whom the same is directed, to leave a copy thereof with the wife of the defendant or some free white person above the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or to leave a copy thereof at some public place at the dwelling-house, or other known place of residence of such defendant, he being from home, and no such free white person being found there willing to receive the same.”

On the 18th of June, 1838, the District Judge for the Southern District of Mississippi, in the absence of the circuit or presiding Judge, caused to be entered on the minutes of the Circuit Court, as a rule of -proceeding in that court, an order in the following words, viz.,The capias ad respondendum shall be served by arresting the defendant, unless bail be waived ; or where bail be waived, or a summons shall issue, the same shall be served personally, or if the defendant be not found, by leaving a copy thereof at his or her residence, or usual place of abode, at least twenty days before the return day thereof, to entitle the plaintiff to á trial or judgment by default at the return term.”

The action in this case was commenced by a summons, and the marshal’s, return of the service of that process, and the judgment thereupon by default at the return term, and the subsequent'proceedings upon that'judgment, were as have been already stated.

Upon the application of the defendant Hardeman, at the May term of the Circuit Court, in the year 1850, until which time the proceedings in this case had been stayed, the court quashed the forthcoming bond and fieri facias sued out thereon, and set aside the judgment purporting to be a judgment by default against the defendant, as being unwarranted upon the face of the proceedings, and therefore void.

In reviewing the decision of the Circuit Court, it should be borne in mind, as a rule to guide and control our examination, that the judgment impugned before that court Was a judgment by default, and that in all judgments by default, whatever may affect their competency or regularity, every proceeding indeed, from the writ and indorsements thereon, down to the judgment itself, inclusive, is part of the record, and is open to examination. That such cases differ essentially, in this respect, from those in which there is an appearance and a contestatio litis, in which the parties have elected the grounds on which they choose to place the controversy, expressly or impliedly waiving all others. In support of the rule just stated, many authorities might be adduced; we cite for it the cases of Nadenbush v. Lane, 4 Ran. 413, and of Wainwright v. Harper, 3 Leigh, 270.

Within the scope of this rule, two inquiries present themselves in connection with the decision of ihe Circuit Court. The first is this, whether the court in which the judgment by default was taken, ever had jurisdiction as to the defendant, so as to warrant'the judgment entered against, him by default. And the second inquiry is, whether, upon the hypothesis that the court had not jurisdiction of the person of the defendant, and that the judgment against him was not binding, "it was competent for the Circuit Court, in the mode adopted by it, to set aside the judgment, and to quash the proceedings consequent thereupon.

In reference to the first inquiry, it would seem to be a legal truism, too palpable to be elucidated by argument, that no person can be bound by a judgment, or any proceeding conducive thereto, to which he never was party or privy; that, no person can be in default with respect to that which it never was incumbent upon him to fulfil. The court entering such judgment by default could have no jurisdiction over the person as to render such personal judgment, unless, by summons or other process, the person was legally before it. A court may be authorized to exert its powers in reference either to persons or things — may have jurisdiction either in personam, or in rem, and the existence of that jurisdiction, as well as the modes of its exercise, may vary materially' in reference to the subject-matter to which it attaches. Nay, they may be wholly inconsistent; or at any rate, so much so, as not to be blended or confounded. This distinction has been recognized in a variety of decisions, in which it has been settled, that a judgment depending upon proceedings in personam can have no force as to one on whom there has been no service of process, actual or constructive; who has had no day'in court, and no notice of any proceeding against him. That with respect to such a person, such a judgment is absolutely void; he is no party to it, and can no more be regarded as a party than can any and every other member of the community. As amply sustaining these conclusions of law, as well as of reason and common sense, we refer to the following decisions. In Borden v. Fitch, (15 Johnson’s Rep. 141,) Thompson, Chief Justice, says: To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and the subject-matter; and the want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced, or where any benefit is "claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose. The cases in the English courts, and in those of our sister States, are very strong to show that judicial proceedings against a person not served with process to appear, and not being within the jurisdiction of the court, and not appearing in person or by attorney, are null and void. In Buchanan v. Rucker, (9 East, 192,) the Court of King’s Bench declared that the law would not raise an assumpsit upon a judgment obtained in the Island of Tobago by default, when it appeared upon the face of thp proceedings that the defendant was not in the island when the suit was commenced, and that he had been summoned •by nailing a copy of the declaration on the court-house door. The court said it would have made no difference in the case if the proceedings had been admitted to be valid in the Island of Tobago. In the Supreme Court of Massachusetts, Chief Justice Parsons, in Bissell v. Briggs, 9 Mass. Rep. 464, lays down the principle very clearly and distinctly, that before the adoption of the Constitution of the United Stáfes, and in .reference to foreign judgments, it was competent to show that the court had no jurisdiction of the cause; and if so, the judgment, if set up as a justification for any act, would be rejected without inquiring into its merits.’ After citing a number of cases, the learned Judge proceeds to say: “ We have refused to sustain an action here upon'a judgment in another State, where the suit was commenced by attachment, and no personal summons or actual notice given- to the defendant, he not being at the time of the attachment, within the State. In such cases, we have considered the proceedings a.s in rem, and only bidding the goods attached, and the judgment having no force in personality. This principle is not considered as growing out of any thing peculiar to proceedings by attachment, but is founded on more enlarged and general principles.” It is said by the court, “ that to bind a defendant personally by a judgment, when he was never personally summoned, nor had notice of the proceedings, would be contrary to the first principles of justice.”

It is worthy of notice, in this place, that the cases from 9 East, and 9 Massachusetts Reports, cited by Chief Justice Thompson, were not instances‘in which the validity of those judgments was examined upon appeal or writ of error, but were instances in which that validity was inquired into collaterally, before other tribunals in which they were adduced as evidence to sustain other issues there pending.

In the case of Starbuck v. Murray, 5 Wendell, 156, the Supreme Court of New York say: The courts of Connecticut, Pennsylvania, New Hampshire, New Jersey, and Kentucky, have also decided, that the jurisdiction of the court rendering a judgment, may be inquired into, when a suit is brought in the courts of another State, on that judgment;” and, after citing the cases of Thurber v. Blackburne, (1 New Hampshire Reports, 246); Benton v. Bengot, (10 Sergeant & Rawle, 240); Aldrech v. Henney, (4 Conn. Rep. 280); Curtis v. Gibbs, (Pa. Rep. 405,) they say: “ This doctrine does not depend merely upon adjudged cases; it has a better foundation; it rests upon a principle of natural justice. No man is to be condemned without the opportunity of making a defence, or to have his property taken from him by a judicial sentence, without the privilege of showing, if he can, the claim against him to be unfounded.” The court then proceed to say, “ But it is contended, that if other matter may be pleaded by the defendant, he is estopped from asserting any thing against the allegation contained in thfe record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me, that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court ? Solely to show that its proceedings and j udgment are void, and, therefore, the supposed record is, in truth, no record. If the defendant had not proper notice of, and did not appear to, the original action, all the State courts, with one exception, agree in opinion, that the paper introduced as to him, is no record, but, if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defence, by a process of reasoning that, to my mind, is little less than sophistry. The plaintiffs, in effect, declare to the defendant— the paper declared on is a record, because it says you appeared ; and you appeared, because the paper is a record. . This is reasoning in a circle. The appearance makes the record uncontrollable verity, and the record makes the appearance an unimpeachable fact. Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not, therefore, to be estopped from proving any fact which goes to establish the truth of a plea alleging the want of jurisdiction.”

By the same court, this doctrine is affirmed, in the case of Holbrook v. Murray, 5 Wendell, 161. In the case of Denning v. Corwin & Roberts, 11 Wendell, 648, it was ruled, “ That a judgment in partition, under the statute, where part of the premises belonged to owners unknown, was not valid, unless it appear, upon the face of the record, that the affidavit required by the statute, that the petitioner, or plaintiff in partition, is ignorant of the names, rights, or titles of such owners, was duly presented to the court, and that the notice, also, required in such cases, was duly published.” And Chief‘Justice Savage, in delivering the opinion of the court, said: “On the part of the plaintiff, it is contended that'the j udgment in partition is void, for want of jurisdiction in the court, the requirements of the statute not having been complied with; and, on the part of the defendants, it is insisted that it. is conclusive until reversed o set aside, that it cannot be attacked collaterally, and that the defendants, being bond fide purchasers, are entitled to protection. That a judgment is conclusive upon parties and privies, is a proposition not to be denied; but if a court has acted without jurisdiction, the proceeding is void, and if , this appear on the face of the record, the whole is a nullity.” After quoting the opinion of Chief Justice Thompson, in Borden v. Fitch, 15 Johnson, 121, Chief Justice Savage goes on to say : With respect to tl$e proceedings in partition, now the subject of consideration, there can be no doubt that the court, in which the judgment was rendered, had jurisdiction of the subject of partition; but, to authorize a judgment of partition, the parties must be before the court, or it must be shown to the court that some of- them are unknown; and this must appear by the record, where the- proceeding is against owners unknown; it is aNproceeding in rent, and nothing is to be taken by intendment. There is avowedly nothing like personal notice to the parties interested as defendants; they are not even' named; and the right of the plaintiff depends entirely upon the fact, to be proved by affidavit, that the owners are unknown.” The Chief Justice, after showing the insufficiency, by proof of the affidavit, according-to the requisition of the statute, says: “ The record then states, that at a subsequent day the plaintiffs appear, by their attorney, and the parties unknown being solemnly demanded, come not, but make default. The statute gives the court no jurisdiction to take any steps against unknown owners, until notice has been published according to the statute. Should not the record, therefofe, show that it had been made to appear to the court, by affidavit, that the owners were unknown to the plaintiffs, and that such notice as the statute requires, had actually been given? Suppose a judgment record is produced, in which the plaintiff declares upon a promissory note, and the- record- does not show that the defendant is in custody, or has been served with process, and yet the court render judgment by default, would not such a recor/1 be an absolute, nullity ? ” In the case of Wilson et al. v. The Bank of Mount Pleasant, reported in the 6th of Leigh,/Tucker, President of the court, thus announces the law: “ This is an action upon a judgment of the State of Ohio, whicti, it is contended, is conclusive in the courts of Virginia, upon the principles of the Constitution of th,e United States. It is unnecessary, in this case, to go into the question of the construction of that clause of the federal compact which relates to the, effect of judicial proceedings of the several States in other States, for it seems to. be agreed, on all hands-, that the doctrine of the conclusiveness of the judgments of the several States, is to be taken with the, qualification, that, where the court has no jurisdiction over the subject-matter, or the person, or where the defendant, has no notice of this, suit, or was never served with process, and never appeared to the action, the judgment will be esteemed of no validity.” With this doctrine entirely agrees another doctrine of the Supreme Court Of Virginia, in the case of Wynn v. Wyat’s Admr’, 11 Leigh, 584, in which last case the court say, “ That the appearance ol the defendant, in term, and his motion to quash the attachment irregularly issued, and to set aside the proceedings at the rules, founded upon it, was not an appearance to the action, dispensing with farther and proper process; that the award of the alias summons was proper and necessary; and that the proceedings on that subsequent process cannot be sustained, since, confessedly, it was not duly served.” But the decision which should be decisive upon the question now before us, is a decision of this court, in the case of Hollingsworth v. Barbour eal., in the 4th of Peters, p. 466. That 'was a case exhibiting the following features. A title had been, made to land, by deed from a Commissioner,, acting under a decree in Chancery, in the State Court in Kentucky, in which the “ unknown hens ” of a person from whom title was deduced, were made defendants, and the decree, as against those heirs, was taken by default, after order of publication. The grantee of the Commissioner filed his bill, to obtain possession of the lands, against various persons who had taken possession thereof. The Circuit Court of the United States dismissed the bill, upon the grounds that, at the date of the proceedings in the State Court, (under which the conveyance of the Commissioner purported to have been made,) there was no law of the State authorizing those proceedings against the unknown heirs of the original owner of the land, and the decree taken upon1 those proceedings, by default against them, and, as they never had personal notice of the suit.} the decree by default and the title made by the Commissioner, were null, as respected either those1 heirs, or - the persons in possession of the lands. The very lucid argument of Mr. Justice Trimble, in the Circuit Court, which was adopted literally and in extenso, by this court, is too long for insertion here, but one or two of the conclusions reached by him, and affirmed by this 1 court, in the words of that Judge, may be noticed. “ The principle,” said that Judge, and.1 said this court in confirmation, “ is too well settled, and too plain to be controverted, that a judgment or decree, pronounced by a competent tribunal, against a party having actual, or constructive notice, of the pending of the suit, is to be regarded by every other coordinate tribunal, and that, if the judgment or decree be ecroneous, the erro* can be. corrected only by a supreme appellate tribunal. The leading distinction is between judgments and decrees.merely void,, and such, as are voidable only. The former are bindingvnowhefe, the latter, everywhere, until reversed by a superior authority. The suit and decree- are against the unknown heirs of John Abel Hamblin. Instead of personal Service of process upon the defendants in the suit, an order of publication was made against them; and, upon a certificate of the publication of this order, for eight weeks, in an unauthorized newspaper, being produced and filed in the cause, the bill was taken pro confesso, and, at the next succeeding term, the final decree was entered, directing the conveyance of the land to the complainant. Again, that Judge and this court speaking-through' him, say: “ It would seem that the court acted without authority, and that -the decree is void, for want of jurisdiction in fhé court. But if not- void as being coram non judice, it is void and wholly ineffectual to bind or prejudice the rights of ’Hamlin’s heirs, against whom the decree was rendered, because they had no notice, either actual or constructive. -The principle of the rule, that decrees and judgments bind only parties and privies, applies to the case; for, though the unknown heirs of Hamlin are affected to be made parties in the bill, there was no service of process, nor any equivalent, to bring thein before the court, so as to make them, in the eye of the -law and justice, parties to the suit.” Here, again, it should be borne in mind, that this is not an instance of reversal by an appellate tribunal, ’ for error or irregularity in an inferior court, but a test, collaterally applied by .an independent authority, to the character of proceedings, as void or voidable in their, nature.

At this point it is proper to advert to the character and effect of the1 process in the suit of. Harris and Hardeman, as constituting service upon the defendants in that suit, and thereby investing the court with jurisdiction over their rights. If the rule . prescribed by the statute of Mississippi, already referred to, is to govern in this case, it is' presumed that a doubt will, or can hardly be raised as to the insufficiency of the service, as there are not less than three instances in which the requisites of the statute .have not been • complied with. In the first place, it is not shown, by the return, that the defendant could not be found, which should have been shown, in order to justify the-substitution of any other in lieu of personal service. Secondly, it is not shown that a copy of the process was left, either with the wife of’the defendant, or with some other free white person ■ above the age of .sixteen years, being one of the family of the defendant. Thirdly, it is not stated or proved that a copy was left •at- some public place ,-pf the -dwelling-house of the defendant, he being from home, and no free white person, as • above de-. scribed, being found there, willing to. receive;the'process. But it has been contended, that, by a rule adopted by the Judge of the District Court, a mode for the service of process has been prescribed, differing from that'ordained by tlie-statute, of Mississippi, and dispensing With several'of the requisites insisted on by the statute, and that the service in the suit.in the Circuit Court was in- conformity with the. rule of the District- Judge. Forbearing, for the present, any inquiry as to the validity of thé' rule made by the District Judge, under .the decision of this, court, in the case of Amis v. Smith, 16 Peters, 303, we proceed to compare the proof of service as apparent upon the return of the marshal, with the requirements of the rule in question. This rule has been already quoted. The return of the marshal has also been • given tolidem verbis. It will be seen that the reason assigned in the rule, as forming the justification for dispensing .with personal service, is not stated in the return of the officer, and there is an entire omission, to give the date-or time preceding the term of the court to which the process was, returnable, so as to show that the plaintiff was authorized to take a judgment by default, in virtue of a legal constructive notice, and a failure of appearance. Whether, therefore, the statute of Mississippi, or the rule made by the District Judge, be regarded as operative, there was, in the suit in the Circuit Court, neither notice by personal service of process,, nor notice by legal construction. The judgment by default, therefore, must be regarded as obnoxious to every impeachment of its efficacy which can flow from its having been entered against, one who was never á party in court, with respect to the proceedings upon which that judgment was taken. But there is' another view of the questions raised in this cause, which is equally, or even more conclusive in favor of the decision now under review. At the time of the motion to the Circuit Court to quash the forthcoming bond and to set aside the judgment.. by default, that judgment was still unsatisfied, and was ih the progress of execution, and the forthcoming bond, filed in the clerk’s office, according to the laws of the State, was properly a- part of the process of execution, the fieri facias being sued out therein from the office without any order of"the court. The proceedings then, still being as it were in fieri, and not terminated, it was competent for the court to rectify any irregularity which might have' occurred in the progress of the cause, and to do this either by. writ of error cor am vobis, or by audita querela, if the party cjiaose to resort to .the latter mode. If this position be maintainable, then, there would seem to be-an entire removal of all exception to the judgment of the Circuit' Court, as it is believed to be. the settled modem practice, that in all instances in which irregularities could formerly .be corrected upon a writ of error coram vobis or audita querela, the same objects may be effected by motion to the court, as a mode more simple, more expeditious, and.less fruitful of difficulty and expense. In this case the'cause was still under the control and correction of the court, for the enforcement of its judgment and the supervision of its own process,, and in the exercise of this function, it was competent for it to look back upon the entire progress of the case, up to the writ and indorsements therepn, under the rule already stated, as applicable to judgments by default, and to correct any irregularities which might be detected. In the present case there is less show of objection to such action, on the part'of the court, as it affects the rights of no third parties, but-,is limited in its consequences to the parties to the suit only. We order the judgment of the Circuit Court to be affirmed.

Mr. Justice McLEAN, Mr. Justice WAYNE, and Mr. Justice GRIER, dissented.

Order.

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 Mississippi, and .was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court, on the motion to quash the forthcoming bond and to set aside the original judgment as set forth in the record of this cause, be and the same is hereby, affirmed with costs.