text:
    Mary Ann Connor, v. Henry Bradley and Mary, his wife.
    In an action of ejectment, if the plaintiff count upon a lease to himself from a person whom the evidence shows to have been dead at the time, it is bad.
    It is a settled rule at common law, that where a right of re-entry.is claimed on the ground of forfeiture for nonpayment of rent, there must be .proof of a demand of the precise sum due at a convenient time before sunset, on the day when the rent is clue, upon the land, in the most notorious place of it, even though there be no person on the land to pay.
    In proceeding under the statute of 4 Geo. 2, it must be alleged and proved, that there was no sufficient distress' upon the premises on some day or period between the lime at which the rent fell due and the day of the demise; and if the time when, according to the proofs, there was not a .sufficient distress upon the premises, be subsequent to 'the day of the demise, it is bad.
    This case was brought up by writ of error, to the Circuit Court, of the United States for the District of Columbia and county of Washington.
    The case' was this:
    .. In 1807, William.Prout, living in the city of Washington, and being the owner,-in fee, of á lot .in said city, made a lease of a part of-it to Joseph B. Parsons, for the term of ninety-nine years, renewable forever. • It was in' the usual form, and contained the usual covenants, (with the exception of the one hereafter mentioned,) reserving an annual rent' of thirty-five dollars, paya- • ble on the 13th'day of March, clear of all taxes, charges, rates, or assessments whatsoever. There was a covenant that if the said yearly rent of thirty-five dollars should be unpaid at the expiration of sixty days after it was due, and. no sufficient effects could be found upon the.premises, whereon to levy the same, it should be lawful for Prout, his heirs or assigns, to-re-enter and take possession of the leased premises.
    The special covenant was to this effect, that; if at any time or-times thereafter,.and .before the expiration of the lease, Parsons, or his heirs, executors, &c., should pay to the said Prout-, his heirs, executors, administrators or assigns, the sum of $196'87$ cents over and above all. rents for said .piece of ground that might then be in arrear, that- then -the said. Prout, his heirs, &c., should make and execute a good and sufficient deed of-release in fee simple to the said Parsons, his heirs, &c.", for the said piece .' dr portion of ground.
    In 1813, Parsons died, having occupied the leased'property from the time that the lease was made.
    ' . In 1815, and-prior thereto, the widow of Parsons, who con tinued in possession of the property, paid to Prout $100 on ac count of the purchase of the fee simple in the said lot.
    In 1823,Prout died; Mary Bradley, one of the lessors of the plaintiff,"being one of his surviving .children.-. After Prout’s death, the widow of Parsons gaye possession of the property in question to Mary Ann Connor, the-defendant in the ejectment, who for some time paid the taxes as they accrued, and also paid various sums of money on account of the rent due, and iii arrear., and of the accruing rent.
    In 1831, a partition of the estate of Prout was made, according to law,-among his children, and the leased premises in-question were assigned to Mary Bradley. After the partition, Mary Ann Connor made payments on account of the rent to Mary Bradley, and also paid the taxes' to the corporation of the city of Washington, up to the year 1831, but omitted to pay the taxes for the years 1831,1832,1S33, and 1834, amounting in all to $44 33 cents.
    In 1835, George Adams, the collector of taxes for the corporation of Washington, after'baving advertised the property, set up to sale the leasehold interest in the said premises, but receiving no bid for the same, immediately thereafter exposed to public sale . the fee simple interest and estate, which was purchased by one Allison Nailor, forthe sum of $49 83 cents, being the amount of taxes due thereon, together with the expense of selling the same,- The property had been assessed on the books of the corporation of Washington, from 1813 to .1838, in the name of Joseph B. Parsons’s heirs.
    On the 2d of June, 1838, the corporation of Washington made a deed of the premises to Allison Nailor, and, in November following, he conveyed them to Mary Ann Connor.
    In„ November, 183S, Henry Bradley, and Mary his wife, brought an ejectment against Mary Ann Connor, counting on two' demises; one,from William Prout, on the 1st day of January, 1827, and the other from Henry Bradley and Mary his wife, on .the 1st (lay of January, 1838.
    The judgment of the-court below was for the plaintiffs.. Two bills of exceptions were taken, the first of which it is only necessary to notice, and which is. stated at large in thp opinion of the court.

      Brent and Brent, for the plaintiff in error, and Bradley, fox defendant.
    Only such parts of their arguments will be noted as bear upon the point upon which the court-rested their judgment.

      Brent, for plaintiff in error,
    contended, that, as to the first demise, laid'on the 1st January, 1827, it was bad, because the evidence showed that Prout died in 1823. 3 Wend. 153..

    The second demise is laid on the 1st January, 1838, and the' lessor must show, a right to re enter on that dayand he cannot have such righ.t unless there be insufficient distress'upon the premises: 3 Harris and Johns. 19; 5 Harris and Johns. 175; Adams on Ejectment, 189; 1 Johns. Ca. 283; 6 Cowen, 143; 2 Leigh’s N. P. 882,883,934; 4 Durnf. and East, 681; 6 Binn. 454; 3 Bibb, 297; 3 Marshall, 134; 3 Monr. 221. The evidence shows that there was not sufficient distress on the premises, on the — day of October, 1838, but not how it was in January, 1838. Evans’s Practice, 48; Adams on Ejectment, 150, reciting statute of Geo. 2; 7 Durnf. and East, 117, 120 ; 2 Leigh’s N. P. 924; Doug. 485; 15 East, 286; 2 Chitty’s Pleading, 880, note K; 2 Maule and Selw. 529; 6 Cowen, 149.

      Bradley.

    15 East, 286 — 288, (referred to in Leigh’s N. P.) only, says that there must be an insufficiency at the time of the notice, or when the declaration was served. But in this case the tenant sets up an adversary title, and does not come within the rule. Buller, N. P. 96; 6 Johns.'Rep. 272.
    ■ Connor must be considered as a trustee for the true owner, having obtained the title by fraud. 2 Bos. and Pul. 178; 8 East, 263. Court will direct the jury to oresume a deed from trustee to cestui qua trust. 4 T. R. 682.

      Brent,

    in conclusion, insisted that the demise in the declaration must correspond with the right-of entry, which did.not accrue until there was ah .insufficient distress. 8 Peters, 214. Reason of the rule stated in 3 Harris and Johns. 19; 6 Johns. 273. Question of fraud not raised in the bill of exceptions.
   Mr. Justice DANIEL

delivered the opinion of the court.

At the trial below, the jury having returned a verdict for the plaintiff, the court thereupon adjudged to him his unexpired term in the premises claimed. To the rulings of the court in the progress of the trial two bills of exceptions were sealed at' the instance of the defendant. The second of these bills is adverted to merely as making a part of the history of this -cause. The questions thereby presented as growing out of the assessment of taxes on lots in the. city of Washington, and the modes of pro- ’ ceeding by the corporate authorities to subject the real property • of delinquents to sale for arrears of taxes, under the acts of Congress applicable to such subjects, are withdrawn from the action of the court, by previous and more material considerations-claiming its attention Under the first bill of exceptions ; and which, in the view of the court, must determine" the rights of these parties in their present attitude here. ■ This'bill of exceptions is -iti the following words:

Defendant’s first exception. — On this trial of this cause, the. plaintiffs, to maintain the issue on their part joined, gave" in evidence a lease.from William Prout to .Joseph B. Parsons, as follows, (copied in page 18,) and proved that the premises in question are the same as those mentioned in said lease; they farther gave evidence, to show that Joseph B. Parsons entered into the possession of the said premises under the said lease, and continued to occupy them until his death, which happened some time in the year .1813; that-he left a widow and seven children, of whom the defendant is one; that -his widow was left in the possession, thereof at his death, and remained and continued in said possession until the death of said William Prout, which happened some time^in the year 1823; that previous to the year, 1815, she paid to the said William Prout, $100 on account of the purchase' of the fee -simple of the said lot; that some time after the death of the said William Prout, the said widow of Joseph B. Parsons abandoned the possession of the said premises to the defendant, and the defendant took possession, thereon claiming' to hold the leasehold interest, with th'e full knowledge, and consent of said widow, and of the children of said Joseph B. Parsons; that the defendant thenceforth paid the taxes on the said lot under .the said lease, and, from time to time, paid various sums of money on account of the rent due and in arreay under the said lease, and of the accruing rent; that, as appears by the within admission of the defendant filed in this cause, marked A, and as follows, (copied in page 14,) a partition of the estate of said William Prout was made, in March, 1831, among his children; tHaf by .that partition, the said premises, and the reversionary interest in-the land .described in the said lease, was assigned Mary Bradley, one of the plaintiffs, in fee simple ; that the square -ih which the said.demised premises are-situated, was divided.into lots, on the . plan-of the city of Washington; that after said partition, the said defendant paid moneys on account of said rent, under said lease, to said Mary Bradley, and also paid the taxes to the corporation of the city of Washington, as provided in said lease, to the year 18311; that she failed to pay the taxes for the years 1831, 1832, 1'833, and 1834, amounting in all ro the sum of $4.4 33 cents, and' the said leasehold interest was set up for sale, and it.not producing enough, the fee simple of the ground described in said lease was set up for sale for taxes, and was sold.;- that at the time of' the said tax sale, there was personal property on the said grohnd, ■liable for said taxes, more'than sufficient to pay such taxes, and the-said ground was improved property, haying adwelling-house upon it; that after said tax sale, the defendant promised the plaintiffs to redeem said' property.,-and failed to do so within the two years next succeeding said sale; that she. waited until said two years had elapsed, aud then called upon Allison Nailor, the purchaser thereof at said tax sale, and represented to him that she was the owner of the said property, and obtained from him an assignment of his certificate of purchase at said tax sale; that afterwards, the said- assignment was cancelled, because the corporation could make no deed to ah assignee, and the said Nailor' received a'conveyanee from the corporation of Washington, and then executed a, conveyance to the defendant of the premises in question, and the defendant then set up a claim to the premises in feh' simple, and adverse to the plaintiffs; that on the — day of October, 183S, there was rent due and in arrear, und.er the said lease amounting to $193 ; and that there was not more than $30 of personal property on the said pre.mises, liable to distress for rent, on the,— day of October, or at the time of bringing this action; and here the plaintiffs rested. And thereupon, the defendant, by her counsel, prayed the court to instruct the jury that, under the evidence aforesaid, the plaintiffs are not entitled to recover in this action ; which instruction the court refused to give,- and the defendant éxcepts .thereto, and prays-the court to sign and Seal this bill of exceptions, which is done accordingly.

W. Crancii, [l. s.]

James S. Morsell. [l. s.]

By a comparison of the facts set out in this bill, with the first count.in the declaration, it will be seen that the plaintiff has counted upon-a lease to: him from William Prout of the date of January, 1827, when it is manifest'by the proofs adduced by the plaintiff, that Prout died in 1823, four years previously to the existence of'the lease. This irreconcilable contradiction- between the different parts.of th.e plaintiff’? title, as dependent-upon- the first count,-it is unnecessary to comment upon, as the counsel was understood, in the argument, to a'dmit its effects as-conclusive to prevent a recovery under that count.

’ Had the plaintiff in ejectment a right to recover under the demise from Bradley aud wife, upon the second count? The foundations for the -recovery contended for on behalf of the plaintiff are, a' forfeiture of tenure by the defendants, and a -right of re.entry in the plaintiff, for a breach of the condition in the lease of the premises, by the father of Mary Bradley, one of thp lessors of the plaintiff, to Joseph B. Parsons. It is á settled rule at the common law, that where a right of re-entry is claimed on the ground of forfeiture for nonpayment of rent, there must be proof of a demand of the precise sum due, at a-convenient time before sunset on the day when the rent is due, upon the land, in".'the most notorious place of it, even though there be no person on the land to pay. 1 Saund. 287, note 16, in which are cited 1 Leon. 305; Cro. Eliz. 209; Plowd. 172, b; 10 Rep. 129; Co. Litt. 201, b; 4 Leon. 117; 7 T. R. 117; and numerous other authorities. See also upon the same point, Doe ex dem. Wheeldon v. Paul, 3 Car. and Payne, 613, (14 Eng. Com. Law, 483;) and Roe ex dem. West v. Davis, 7 East, 363. In this case no proof is adduced or even pretended of a compliance with, any one of the requisites just enumerated.

But this suit is said not to be prosecuted upon rules of practice at the common law, but under the authority of the statute of 4 Geo. 2, c. 28, which;is in force in Washington .county. We will inquire how.far the decisions upon the interpretation of this statute have been fulfilled in the case before us. In Doe v. Lewis, 1 Burr.. 619, 620, the court say that this statute prescribes a method of proceeding' in ejectment in two caseá, viz.: one in case of judgment against the casual ejector; "the other, in case of its coming to trial. " In the former, an affidavit "must be made in the court where the suit is depending, that half a year’s rent was due before the-declaration was served,.and that no sufficient distress was to be found on the premises countervailing" the arrears then due, and that the lessor had power to, re-enter; in the latter, (that of a trial,)" the same things .must be proved upon the trial; therefore it is.held that this statute’ does not "extend to cases where there is a sufficient distress upon the premises, and consequently in such cases the lessor must proceed at common law as' before the statute. To the. same effect is the decision in Doe ex dem. Foster v. Wandless, 7 T. R. 117. It. has been expressly ruled that under the statute of 4 Geo. 2, there, must be. proof that on some day or period between the time at’which the rent fell due, and the day of the demise, there was not a sufficient distress on the premises. Doe ex dem. Smelt v. Fuchau, 15 East, 286; and further, that evidence must be adduced showing an examination of every part of the premises, and that where a party omitted to •enter a cottage, this was deemed an insufficient search. 2 Bro. and Bing. 514, (6 Eng. Com. Law.) Of the two demises laid in the declaration, the first is in January", 1827, the second on the 1st of January, 1838.' Turning to the first bill of exceptions, we find it stated, as having-been proved, that on the — day of October, 1838, t.here.'Was rent due and in arrear, amounting to$193; next, that there .was not more than $30 value of personal property on the premises liable to distress for rent on the — day.of October, or at the. time of bringing thi6 action. It will thus be perceived that the proofs by the plaintiff in ejectment fall short' of the requirements of the statute- in the following particulars, viz-., in- failing to show that any examination had been made to ascertain what amount of personal property was upon the premises at any time, or that there, was any .one day or period of time between the accrual of • the rent for six months, and the date of either demise, at which there was a deficiency of personal property on the premises countervailing (to adopt'the language of the "courts) the arrears' then due, for the last demise is dated. January 1, 1838, the deficiency is averred to have been in the month of October following; the. declaration was served in November, 1838, a still later period of. time.,

For-these defects in the case made.by the plaintiff in ejectment,it is the opinion of this court that-, the instruction prayed by the defendant, as set forth in the first-bill of exceptions, ought to have been given; that in refusing such instruction the Circuit Court' has erred. Its judgment must therefore be reversed.

ORDER.

This cause came on.- to be h.eárd on the transcript of the record from the Circuit Court of the United States for the District of'Columbia, holdenrin and for the county, of Washington, and was argued by counsel.' On consideration whereof, it is now here ordered and adjudged by this court,'that the judgment of the said Circuit Court in this cause be. and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded:to the said Circuit Court,'with directions to award a Venire facias de novo.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Lessee of Sarah I. Jewell and others, Plaintiffs in error, v. Benjamin Jewell and others, Defendants.
    The declarations of a-deceased member of a family that the parents of it never were married, áre admissible in evidence whether his connection with that family was by blood or marriage.
    The acts and declarations of the parties being given in evidence on both sides, on the question of marriage, an advertisement announcing their separation and appearing in the principal commercial newspaper of the place of their residence immediately after their separation, is part of'the res gesta, and ad-: missible in evidence. Whether or not it was inserted by the parly, and if it .was, what-were his motives, are questions of fact for the. jury.
    If .a written contract between the parties be offered in evidence, the purport of which is to show that-the parties lived together on another basis than marriage, and the' opposite party either denies the authenticity of the paper or alleges that.it was obtained by fraud; the question, whether there was a marriage or not, is still open to the jury, upon the whole of the evidence.
    Upon the two questions, 1st. Whether, “ if before any sexual connection between, the .parties, they, in the.presence of her family and friends, agreed to marry, and did afterwards liv-e together as man and wife,” it was a legal marriage and the tie indissoluble.even by mutual consent; and, 2d. Whether, “if-the contract be made per vería de presentí, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation,”“it amounts' to a valid marriage, which the parties (being competent as to age and.cotí-, • sent) cannot dissolve, and is as equally binding as if made in facie ectledce ; the court can express no opinion,.being equally divided.
    This case was brought up, by writ of error, from the Circuit Court for the district of South Carolina.
    The facts which were not denied were few; nearly all the evidence being of a contradictory character. All .this evidence was bróught to the notice of this court, in the argument, in consequence of the refusal of the court below to. grant the third instruction prayed for by the plaintiffs, which instruction will be stated, hereafter.
    The admitted facts were these:
    About the'year 1794 or-Í795, Benjamin'Jewell became acquainted' with Sophie Prevost, a young girl, who, with her family, had shortly before emigrated from-the West Indies' to Savannah. They lived together and continued to do so-for many years. They resided but a short time in Savannah, then removed -to Barnwell, in South Carolina, and- finally to Charleston. During this time, many children were born, who®were reared in the house where their parents lived, the mother passing by the name of Mrs. Jewell. In the year 1810, they separated by mutual consent, after executing the following paper.
    .“ Articles of agreement between Benjamin Jewell and Sophie Prevost, and receipt of Sophie Prevost, dated 1810 and 1811.
    “Articles of agreement entered into this 4th day of December, 1810; Benjamin.Jewell on the one. part, and Sophie Prevost on the other.
    ' “ Whereas, the said Benjamin Jewell and Sophie Prevost have cohabited for several years past, and have had eight-children, hut are now willing and desirous to separate and live asunner; on certain terms and conditions hereinafter specified: Now this instrument of writing witnesseth, that the said B. Jewell and Sophie Prevost do agree henceforward to live separate, and asunder.
    “The said B. Jewell, on his part, consents and engages that the said Sophie Prevost. shall have under-her sole and absolute control, and.free from all restraint or control by the said' B. Jewell, the following children, viz.:' Juliana, Daniel, and Washington, each' child havihg its clothing; The said Sophie' Prevost, on her part, engages and consents, that the said B. Jewell shall have under his sole and absolute control, and free from all restraint or control by the said Sophie Prevost, the ’following children,-viz. Benjamin, Joseph, Hannah, Hetty, and Delia, with their clothing. The said Sophie is to pay all the expenses of clothing, education, and maintenance of the children above allotted to her; and the said Benjamin Jewell-is to pay all the expenses of clothing, education, and maintenance of the children. allotted to him; and moreover engages to pay for one year’s schooling, viz., the sum of $40 for the child Juliana, in order to'complete her schooling.
    “ The said Sophie engages not to disturb the said Benjamin, in respect to the management of the children allotted to him, nor in any manner control or interfere with them. And the said Benjamin engages in like manner in respect-to those children assigned to the said Sophie.
    .“ And in consideration of this separation and consent to live asunder, the said Benjamin engages to pay to the said Sophie Prevost the sum of $3000; ar^l to give her a bill of sale of the .fellow Jesse, the girl Harriet; the wench Nancy, with her three children, Charlotte, Marjq and Charles; also, the following-articles of furniture, (here'follows a list of furniture ;) and in consideration of the.above,on thé part of said Benjamin Jewell, the* said Sophie Prevost doth hereby release and discharge the said Benjamin' Jewell from all claims and demands whatsoever. In witness whereof, the parties to these presents have set their hands, this 4th of December, 1810. Benjamin Jewell,

      “ W. L. Smith. Sophie Prevost.”

      (Note. The signature of W. L. Smith in the original paper is written with pencil.)
    It was admitted that Sophie Prevost gave sundry receipts- for ' the cash and furniture.mentioned -in the above agreement.
    It was further admitted, that in June, 1S13, Benjamin Jewell' was married in Richmond, Virginia, to Sarah Isaacs, by the regular minister of the Hebrew congregation, according to the rites and ceremonies ooserved by the Jews, soon after which they removed to the state of Louisiana.
    In ISIS, Sophie Prevost married a man by the .name of Stome, continuing to reside in Charleston.
    In 1828, Benjamin Jewell died, intestate,, in Louisiana;. and. his widow and children liviijg there, brought an ejectment against , his children in Charleston, to recover a house and lot, of .which the latter" were in possession.
    The whole question turned upon the validity of the-first mafriage; there being no controversy about the validity of the second, in case Jewell, at the time of contracting the second marriage, had not a wife living,
    To support the first- marriage, it was given in evidence by .Sophie Prevost, (who had released her interest in the property in dispute,) and by others, that at the time of the marriage -she and her family had recently arrived from the West Indies; that, she was very young; that they brought with them some negroes of whom'Jewell received three as her portion; that, in consequenae of her being a Catholic and Jewell a Jew, the ceremony of marriage between them was performed by a magistrate named White, in the presence of her family and other persons; that she was entirely ignorant of the English language; that she lived with Jewell as his wife, in his house; and urj.der his name; that they removed-, to Barnwell district in South Carolina, where also she associated with the neighbourhood as his wife; that they then removed to Charleston, where Jewell kept a clothing • store; that she attended^ to the' concerns of the shop and family as Mrs, Jewell; that the children yvere circumcised according to the Jewish laws, and that none but legitimate children are so; that she was recognised in society as his wife; that, in 1806, she executed a release of dower in some property which Jewell had mortgaged, and that such release .was in the form which the law prescribed for wives; that according to-the general opinion among Hebrews, a marriage, in the scriptural sense, between á Christian .and-a Jewess is not legal;. but that thé Jewish law considers .a connection between a Hebrew man and a Christian woman, as concubinage; that it is the- duty of a Je.wto obey the laws of the ■ country in' which he lives; that, if a divorce h? obtáined according to their law, by mutual consent, it is not considered unlawful to marry again; that the man writes a paper to .the effect that the woman is at liberty to marry again, and the act on the part of- the woman is her receiving it and assenting to it.
    The evidence offered by the plaintiffs in. the suit below, to rebut the idea that a marriage had ever taken place between Jewell and Sophie Prev.ost was, in the first place, the following paper:

      “Savannah, lOih March, 1796.
    “Received of Benjamin Jewell, the sum of five hundred dollars, in full for the cause of action which I brought against him on' a promise of marriage; which sum of five hundred dollars, I acknowledge to be in'full compensation, and from which I do .release and exonerate the said Benjamin Jewell of all actions, demands, or engagements, whatsoever, from the beginning of the world to the present day. '[The remaining part of .the paper is characterized by the court as gross and indecent, and the Reporter does not think proper to insert it. Its purport was to recognise a continuance, of the connection on another basis than marriage.] Sophie Provost.
    “ Witness,
    “ Charles Harris, Geo. J.-Htjll.”
    It was also given in evidence by the plaintiffs-that the above paper was recorded in the clerk’s office of thé Superior Court for Chatham county, (the county in which Savannah is situated,) in the month, of August after its date, en the cath of Mr. Harris, one of the subscribing witnesses. The handwriting of Mr, Harris,.who was a distinguished counsellor at law in Savannah, as well as that of Hull, the other subscribing witness, who was a deputy marshal of Georgia,' was proved by a judge and by one of the members of the Savannah-bar. It was also- given in evidence-that-Charles Harris was of the highest standing and character; was a distinguished-man in the state, and understood and spoke--French fluently. No other part of the paper was in his handwriting except -the words “ witness, Charles Harris.”
    It was also given in evidence by the plaintiffs, that upon an examination of ■ the minutes of the courts, where the record of magistrate^ still remains, the name of White, who wás said- to have performed the marriage deremony, did not appear as a jus-' tice of the'peace, in Savannah, in the year 1796, or at any time previous. ■
    It ivas also given in evidence by the plaintiffs, that Jewell and Sophie Prevost-were not considered to be married, by one Borbot, the clerk of Jewell, or by the persons with whom he associated.
    It was further given in evidence on behalf- of- the plaintiffs, by the Rev. Mr. Poznanski, the officiating minister of the Hebrew congregation in Charleston, that if' a Jew -has' a child by a person who is not.a Jewess, the rite of circumcision may-be performed, and that it is not necessary (for circumcision) that the child should be legitimate.
    To -rebut all this evidence, the defendants gave testimony, by Sophie Prevost or Jewell, that she never signed the paper, purporting to be a releasé of all damages, &c., or any paper- of the kind, and that she never was acquainted with either .Harris or Hull; and by R. W. Pooler, the clerk of the court, that aldermen of the Common Council of Savannah were ex officio justices of the peace, for all purposes, within the towii and hamlets of Savannah, but that-he did not know whether or not White was an alderman in the years 1794, 1795, or 1796.
    There were two bills of exceptions taken in the court below; the first of which related to the admissibility of certain evidence which the court' rejected; and the second to the instructions prayed to be given to the jury, and refused by the court, as also ' to the instructions actually given.

      The first bill of exceptions .is as follows, viz.— ■
    The plaintiff, to . sustain his action, proved the marriage of Benjamin Jewell, on the 30th June, 1813, with Sarah Isaacs, one of the lessors; the seisin of Benjamin Jewell; his death; and that the other lessors of the plaintiff are the issue of that marriage.
    The defendants, to defeat the plaintiff’s action, and- prove themselves the heirs at law of Benjamin Jewell, examined Sophie Storne, who testified to a prior marriage between her and Benjamin Jewell; and that he held her out as his lawful wife.; and that eight children were born during the time they lived together; and offered in evidence, to sustain .their defence; the testimony on the part of the defendants contained in the schedule • annexed to this-bill of exceptions. To rebut which evidence, the plaintiff offered the deeds hnd papers annexed, to this bill of exceptions, signed by Sophie Storne, by the name of Sophie Prevost, and gave evidence that the said-Benjamin and Sophie separated in December, 1810; and then offered in evidence, the declarations of one Simons, the deceased husband of. one of the defendants, that his wife’s mother was not married .to her father; which evidence the court overruled, and the plaintiff excepted thereto. And the plaintiff further offered in evidence a file of the Charleston Courier for the year 1811, and showed that the-manuScripts or originals, from which the paper of that day was published, are lost or mislaid; and that the Charleston Courier was then the leading commercial paper in Charleston, where the parties lived, and offered to read from the file the following notice, as published on the 22d January, 1811, and for three successive weeks from that time, viz.—

      “ NOTICE;
    , “ The subscriber forbids all persons from giving credit to .Mrs; Sophie Prevost, on .his account, as he will pay no debts whatever she may contract. - ■
    (Signed,) “ Benjamin Jewell.”
    But the court refused to allow the evidence to be read; to .which ruling of the court the plaintiff excepted.
    Second bill of exceptions .- — And at-the tria]-of the said cause, after the parties had produced the evidence in the schedule hereto annexed, the plaintiffs desired the. said justices to instruct the jury, as follows: ...
    1. That if Sophie Prevost and Benjamin Jewell agreed to live in concubinage, and, under that agreement, cohabited together, the connexion is not matrimony, althobgh'they passed themselves off, to other persons, as man and wife.
    2. That if Benjamin Jewell and Sophie Prevost asserted, contrary to the fact, that they were married", when, in reality, they had agreed to cohabit- without marriage, such assertion will not change the nature of their connexion so as to legitimate- the children that were the produce of that unión.
    3.. That if the jury do not believe that Benjamin Jewell and Sophie Prevost were married by a magistrate in Savannah, in the year "1796, or before that time, then there is no evidence of a marriage before them, on which they can find the defendants to be the legitimate heirs of Benjamin Jewell.
    4. That if the said Benjamin and Sophie were living, in concubinage in 1796, under the' agreement produced in evidence, and continued to cohabit together afterwards, such cohabitation.will not amount to marriage, notwithstanding their representations.to third persons, unless there was a distinct agreement between them to rescind the former agreement, and to stand to each other thenceforward in the relation of husband and wife. And,that if such new agreement be relied on, it ought to be established by satisfactory proof, and cannot be inferred from common reputation.
    5. That if there was a. promise- of marriage, followed by sexual intercourse between Benjamin Jewell and Sophie Prevost, and she afterwards sued him for breach of marriage promise, or received a sum of money in satisfaction of -the injury done her by refusing to marry her, the promise is thereby released, and the promise and subsequent intercourse do not constitute the parties man and wife.
    6.. That a promise to marry at a future time,- followed by cohabitation, does not constitute marriage, though the promise be accepted at the time when it was made.
    And the defendants' prayed the justices to instruct the jury: -
    1. That if they believe that before any sexual connexion between Miss Prevost and Benjamin Jewell, Mr. Jewell and Miss Prevost, in the'presence of her family, and his friends, agreed to marry,-and did afterwards live together as man and wife, the tie was indissoluble even by mutual consent..'
    2. That if the jury'believe a marriage'was celebrated in Sar vahn'ah by a magistrate, the moment the celebration was over, the.contract was perfect and indissoluble.
    3. That even -if the' paper signed in Savannah in March, 1796, ■was signed by Sophie Prevost, and was so signed when she was unmarried, still it was-pot an indissoluble'contract, but one which the parties-were- at full liberty to cancel'and retract. And that the constant admission by both parties that they were man and wife,'their reception .in society, his calling her to renounce her dower, are evidence to authorize the jury to draw the conclusion that Mr. Jewell and Sophie Prevost had-concluded and.agreed to become and live together as lawful husband .and wife prior to 1810; and if so, the separation does not affect the -right of the children of that marriage; they are legitimate.
    And the said justices-refused the third instruction prayed by the plaintiffs. And a-s to the sixth instruction prayed by the plaintiffs, the said- justices instructed the jury, that “if the contract be made per verba de presentí, and remains without'cohabitation, or if made per verba de-futuro., and be followed by consummation, it amounts-to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve; and it is equally binding- as if made in fucie ecclesise.” 2 Kent’s Com.
    86, 3d'..edit. To which refusal and' instruction the plaintiffs except. And the said justices gave the first instruction prayed by the defendants, to which' the plaintiffs also except.

      Coxe and Legaré, attorney-general, for the plaintiffs in error.

      Hunt, for defendants.'
    The following were the points relied upon on the part of the plaintiffs in error:"
    1. That the- declarations of Simons ought to have been admitted in evidence;
    2. That- the exclusion of the notice in the newspaper, was ■ error.- •
    ■ 3. That Mrs.- Storne was clearly incompetent as a witness, if hef testimony- was true, $he having been the wife of Jewell.. She was also interested in the eveilt of the ca.use. (This point, however, was not in the bill of exceptions, and was not discussed.)
    4. That the instructions asked for by the plaintiffs, and refused by the court, ought to have been given.
    5. That there was error in the instruction given.at' the request of the defendants.

      Coxé, for. plaintiff, in error,
    entered into a particular examination of the testimony, all of which was before the court, in consequence of the refusal of the- court below to grant the third instruction, prayed by the plaintiffs, .which was, that if the jury did not believe that Benjamin • Jewell and Sophie Prevost were married by a magistrate in Savannah in the year 1796, or before that time, then there was no evidence of a marriage before them.”
    This investigation, as also that of the counsel who argued the case, subseqt'ently, is omitted in the report.
    As to the admissibility'of Simons’s declarations. 1 Stark. 59, (2 Eng. Com. Law, 293;) 1 Maule and Selw. 636; 1 Stark. 69, (2 Eng. Com. Law, 299;) 10 East, 282; 13 Ves. 140; 1 Peters, 328.
    .. As to the admissibility of the publication in the newspaper, 2 Stark. 66, 165, 166, (3 Eng. Com. Law, 247, 296.) That gazette is good evidence to prove public notice, 10 Cond. Ch. Rep. 217.
    As to what constitutes- marriage, Dalrymple v. Dalrymple, 4 Condensed Ecclesiastical Reports, 485, 488, 489;. 4 Bac. Abr. title “Marriage;” Easterly v. Easterly, Dyer, 305; Bac. Abr. pl. 60; Buller’s N. P. 101, 102; 3 Dane’s Abr. 294, 299 ; 18 Johns. 349; 7 Wend. 51; 10 Watts, 58, 161, 162.

      Hunt, for defendants.
    .As to what constitutes marriage, Bracton, b. 1, p. 4, c. 5, s. 7; Swinburne on Espousals, 198, also 5, 6, 7, 223, 224, 226, 227, .234; Taylor on Civil Law, 254, 258, 268, 277, 279; 1 Milton’s Paradise' Lost, as to the ceremony which took .place on the first marriage; 4 McCord, 256;-18 Johns. 347; 4 Johns. 53; 2 Bla. Rep. 877; 1 Dow’s Rep. 176,-181; Moore, 170; Manuscript Cases, in South Carolina, Strongfellow v. Strongfellow also Billings v. Billings, decided by Chancellor Harper; 1 Price’s Rep. 83; 6 Mod. 172; 1 Dow’s Rep. 189.

      As to the admissibility of the newspaper evidence, case of the Berkeley Peerage, 4 Camp. 401.
    As to 'Simons’s declarations; no time or circumstances are ‘ mentioned when they were made, and he does not testify to general reputation.

      Legaré, for plaintiffs.
    As to Simons. His declarations were against his interest. Old coats of arms, tombstones, &c. all now admitted. 1 Peters, 337; 13 Ves. 514; Cowp. 591, 594; 2 Russ, and Mylne, 147, 156; 2 .Cond. Ch. Rep. 431; Greenl. on Evidence, 159.
    As to the newspaper, 7 Peters, 100; Pothier, 295,296; 6 East, 192; 2 Russ, and Mylne, 435.
    As to what constitutes marriage, 6 Serg. and Rawle, 333; 10 Johns. 226, analogous cases of partnership; 2 Barn. and Ald. 387; 18 Johns. 348; 4 Johns. 52; 2 Dow, 462; Cunningham v. Cunningham; 2 Dow, 504; North v. Valek, Dudley's Ch. Rep.;
    6 Binney, 405; 2 Dane’s Abr. 302; 2 Cowen’s Phillips, 354, collection of cases; Alderson v. Clay, 1 Stark. Rep. 405, (2 Eng. Com. Law, 445;) 2 Stark. on Evidence, 590, 688; Kelly v. Jackson, 6 Peters, 622, 62; Greenl. on Evidence, 39; 4 Hag. Ec. Rep. 519; Dalrymple v. Dalrymple was a clear case of verba in presenti; “ accipio te.”

    As to the proof offered that none but the legitimate children of the Jews are circumcised; Gen. xvii. 9.
    On the general subject of marriage, Planke’s History of Christian Society, vol. 1; Pothier, 5, 30, 38, 39; Swinb. 27, 231, 227; Collins v. Jethro, 6 Mod. 155; 3 Dane’s Abr. title “Marriage,” 301, that the canon law was never adopted in this country; Brown v. United States, 8 Cranch, 110; 3 Dall. 281; 2 Bibb’s Rep. 343.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an action of ejectment brought by the plaintiffs iri error against the defendants, to recover a house arid lot in the city of Charleston, in South Carolina. The plaintiffs claim to be the lawful wife and children- of Benjamin Jewell, deceased, who, it js admitted, died intestate and seised of the premises in question. The defendants also claim to be the lawful children of the same Benjamin Jewell, by Sophie Storne, who, before her marriage, was named Sophie Prevost, who is still living and has conveyed all her interest to her children, and the rights of the parties depend altogether upoh'the validity of this marriage.

At the trial in the Circuit Court, the verdict and judgment being* .in favour of the defendant’s, the case is brought here by a writ of error,-sued out-by the plaintiffs.

The questions before this court appear in- the two bills of exception taken by the plaintiffs. • The testimony as set forth in the record is voluminous, and in many instances contradictory. But a very brief statement Will show the pointé of law which have been brought here for revision, and it is unnecessáry to encumber the case with the mass of testimony which Was offered to' the jury by the respective parties, in order to prove or disprove the • marriage in controversy.

The plaintiffs proved the marriage of Benjamin Jewell, on the 30th of June, lS.12,-.with Sarah Isaacs, one of the lessors; and that the other lessors of the plaintiff are the issue of that marriage.

The defendants, in order to show that they, and not the plaintiffs, were-the heirs at law of Benjamin Jewell, examined Sophie Storne, who stated that she was married to.Benjamin Jewell, at Savannah, in Georgia, in 1794 or 1795, by a magistrate whose name she did not recollect, in the presence of several' witnesses; that the said Jewell was a Jew, and the witness a Catholic; that her mother would not consent that she should be married according to' the Jewish form, and that Jewell would not consent to be married according to their form, and on that account they were married by a magistrate; that they lived together as man and wife many years; and that the defendants are the issue of that marriage ; that they at length separated, and' she having heard that Jewell was married'again, thought that she also had a right to marry, and- accordingly married a certain Joseph Storne, wkh' whom she lived .some years, and who is since dead. Various acts and declarations of the parties, and the general reputation in the places where they lived, were also offered in evidence bn the part, of the defendants, to prove that'the said. Jewell and Sophie had lived together as man and wife, and-had constantly acknowledged and spoken of each other as such.

To rebut this evidence, and to show that the connection of the parties was merely concubinage, and not marriage, several instruments of writing, alleged to have been executed by them at different times, were offered in evidence on the part, of the plaintiffs, and also various acts of the parties and the general reputation in the places where they'lived.

After this evidence on the part of the plaintiffs and defendants had been given to the jury, the plaintiffs offered the declarations of one Simons, (the deceased husbancl of one of the defendants,) that his wife’s mother was not married to her father. It was objected to by the defendants,,and rejected by the court..

The plaintiffs also further gave in evidence that the separation took place in Charleston, in the month of December, 1810, where it was admitted that the parties had been living together for many years, and then produced a file of tfie Charleston Courier' for tlie year 1811, and proved that the manuscripts or originals from which the paper of that da'y was published are lost or mislaid; that it was at that time the leading commercial paper in Charleston; -and thereupon offered to read, from the file the following notice, as published on the 22d of January, 1811, .and for three successive weeks from that time, viz.:

NOTICE.

The subscriber forbids all persons from giving credit to Mrs. Sophie Prevost on his account, as he will phy'no debts whatever she may contract. Benjamin Jewell.”

■ But the court refused to allow fhe evidence to be read; and these two points of evidence form the subject of the first exception.

The second exception brings up the question as to what constituted a legal marriage in Georgia and' South Carolina, in one or' the other of which states the parties had always lived from the time of their original connection. Several instructions were asked for on’both sides, some of whieh would appear not to have been controverted; and the points before this court will be better understood, by excluding all the prayers on both sides which do not form a part of the exception, and are therefore not now the subjects of review in this court. The exception is confined- to the third and sixth instructions asked for by the plaintiffs, and to the first asked for by the defendants. They are as follows:

3. That if the jury do not believe that Benjamin Jewell and Sophie Prevost were married by a magistrate in Savannah, in the year■ 1-7-96,,or before that time, then there "is no evidence of a marriage before them, on which they can. find the defendants to, be the legitimate heirs of Benjamin Jewell:

6. That a promise to marry at a future time, followed by cohabitation, does not constitute-marriage, though the promise be accepted at the time when it was made

JJefendanl’s prayer. 1st. That if the jury believe that before any sexual connection between Sophie Prevost and'Benjamin Jewell, they, in the presence of her family, and his friends, agreed to marry, and did afterwards live, together as' man and wife, the tie was indissoluble eveu by mutual consent.

Whereupon the court gave the instruction requested by the defendant, and refused the third instruction asked for by the plaintiff; and upon the sixth, directed the jury that if the contract'be made per verba de presentí, arid remains without cohabitation, or if made per verba .de futuro, and be followed by consummation, it amounts to a valid; marriage, and which .the parties (being competent as to age- and consent) cannot dissolve; and it is equally binding as if made in facie ecelesise., To this refusal and instruction the-plaintiff excepted.

We proceed to examine the questions presented by these exceptions in the order in which they are stated.

The first point in. the first exception is upon the rejection of the declarations' of Simons', the deceased' husband of one of the defendants. It is true that Simons cannot be -presumed to have known of his .own personal knowledge the particular fact of which he wap speaking; and he must have made the statement upon, information derived from others. • fie does pot appear to have named the person from whom he obtained liis infonhation, nor to have stated that his knowledge was derived from the' general -understanding and reputation in his wife’s-family. But the knowledge of events of this description most generally exists in every family, and hence the declaratiqns of one of its .members is admissible, although he does not.mention the source from which' he derived his information; and such declarations are equally admissible whether his connection with the family is by blood or marriage.. In the case of Vowles v. Young, 13 Ves. 140, testimony precisely similar to that now offered was received; and wé think the declarations of Simons ought to' have-been admitted, and that the Circuit Court erred in rejecting thém.

The second point in this exception Was upon the admissibility of the advertisement in the Charleston Courier; and upon this point also we differ in Opinion with the Circuit Court.

It was admitted that the parties had cohabited-together, for a long time, and that -the defendants were the issue of that intercourse; and in order to prove that their mother was married to Jewell, the aets and declarations of the parties during their cohabitation were offered in evidence by the defendants, (and were unquestionably admissible,) to prove that during that time she was. acknowledged and treated by Jewell as his lawful wife. Acts anid declarations were also offered on the part of the plaintiffs, to prove the contrary. The separation took place in December, 1810, in Charleston, where the parties had lived together for niány' years, and this - advertisement appeared in the principal commercial paper of the place in the January following. It was offered by the plaintiff, like the.acts and declarations above mentioned, on his part to rebut the testimony which had been given by the defendants; and this advertisement would manifestly have bepn admissible on the same rules of evidence, if it had appeared while the parties were still living together or at the moment of separation. And although they had parted a short time before! the publication, yet it followed so immediately afterwards, that it must, be regarded as 'a part of the res gesta, and as one of the circumstances connected with'the separation and previous cohabitation. Whether it was inserted by Jewell or not; and if it was, what were his motives for so-doing, are questions for-the consideration of the .jury and not for the court. The' plaintiff had a,right to'show the fact that such an advertisement .did appear-at the timé mentioned, and it was with the'jury to detéimine the degree of weight, if any, to which this fact was .entitled, taking into, consideration all the, circumstances under which it appeared.

As relates to the points contained in the second exception, we think the court were right' in refusing the- third instruction requested by the plaintiffs. In order to explain the question intended to be raised by this prayer, it is proper to state, that' in addition to the testimony of Sophie Storne, herein before mentioned, certain acts and declarations of the parties, which it is not necessary to set forth at large, were given in evidence by the defendants, by other witnesses, to prove that the parties were married at Savannah, abouj; the time .mentioned by Sophie Storne, and before they cohabited together. The plaintiff, on the contrary, in order to prove that they were not married, and that she went to live with him as his concubine, offered in evidence a paper, purporting to be. signéd by the parties, and dated March the loth, 1796, by which there was an open and.plairi agreement on her part to become the mistress of Jewell. The paper is gross and indecent in its -language, and it is unnecessary to state more particularly its contents. The third instruction asked for by the plaintiff is founded upon the assumption that this paper is genuine, and insists that if the marriage did not take place before its date, then the intercourse began under this agreement, and their subsequent cohabitation must be presumed to havé been of the same description, unless an actual marriage after-wards was proved. But the answer to the argument is, that the authenticity of the paper is denied by the defendants, who contend that it was fabricated by Jewell, or, if signed by Sophie, that she was entrapped and deceived, and ignorant of its contents. The question, therefore, is open to the jury, upon the whole evidence, to determine Upon what terms and ih what character the connection originally began; and' the evidence offered by the defendants, that they lived together for so many years as man and wife, and treated and spake of each other as such, are certainly admissible to show that a marriage had taken place between them at some time or other, and whether before or after the date of the paper could not be material.

The residue of the instructions contained in this exception all involve the question as to what constituted marriage, at the time of this cohabitation, by the laws of Georgia and South Carolina. The question has, of course, no concern with the nature and character of the unipn of man and wife in a religious point of view. But regarding it (as a court of justice must do) merely as a civil contract, and deciding in what form it ought to have been celebrated in order to give the parties the legal rights of property which belong to the husband or the wife, and to render the issue legitimate, the Circuit Court held, and so -instructed the jury, that if-they believed that, before any sexual connexion between-the parties, they, in the presence of her family, and friends, agreed to marry, and did afterwards five together as man and wife, the tie was indissoluble even by mutuaf consent. And that if the contract be made per verba de presentí, and remains without cohabitation; or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve; and that it is equally binding as if made in facie ecclesiee.

Upon the point thus decided, this court is equally divided; and no opinion can therefore be given. Upon the questions, however, contained in thé first .exception, the judgment of the Circuit Court must be reversed, and a venire de novo awarded.

order.

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 South Carolina-, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same- is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.


text:
    The President and Directors of the Bank of the Metropolis, Plaintiffs in error, v. The President, Directors, and Company of the New England Bank, Defendants.
    ■ When there have been, for seyeral years,.mutual and extensive dealings between two banks, .and an account current kept .between them, in which'they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all-costs of protests, postage, &c.; accounts.regularly. transmitted from the one to the other and settled upon these principles; and upon the face of the paper transmitted, it always appeared to be the •property óf the respective panics, and to be remitted by each of them upon its own account; there is a lien for a general balance of account upon the 'paper thus transmitted, no matter who may be its redi owner.
    This case was brought up by writ of' error from' the Circuit Court for the District of Columbia'.

      At the trial in the Circuit Court, it appeared upon the evidence that the Bank of the Metropolis, one of the banking institutions of the District of Columbia, had been for- a long time in the habit' of dealing and corresponding with the Commonwealth Bank of Massachusetts. They mutually remitted for collection such promissory notes or bills of exchange as either might have, which ' were payable in the vicinity of its correspondent, which, when paid, were credited to the party who sent them, in-the account current kept by both banks, and regularly transmitted from the one to the other and settled upon thesé principles. The costs and expenses, such as protests and postage,.were, of course, charged in such account.
    The balance was sometimes in favour of one, and sometimes of the other. On the 24th of November, 183-7, the Bank of the Metropolis was indebted to the Commonwealth Bank in the sum of @2200, and in the latter part of the year 18.3^, the Commonwealth Bank transmitted to the Bank of the- Metropolis, for collection in the usual way, sundry drafts, notes, and other commercial paper which would fall due in the ensuing, months of February, March,. April, May, and June. ■ They were endorsed by E. P. Clarke,, cashier, and made payable to C: Hood, cashier, and again endorsed by C; Hood, cashier, to G. Thomas,'cashier. Clarke was the cashier of the New England Bank; Hood, of the Commonwealth Bank, and Thpmas.óf the Bank of the Metropolis.
    On the 13th of January, 1838, the Commonwealth Bank failed, and on that day Charles Hood, the cashier, wrote a letter ;to the Bank of the Metropolis, directing them to hold - the paper which had been forwarded, as above stated, “subject to the order of the cashier of the New England Bank, it being the property of that institution.’-' When this letter was received, the account was examined, and- it was discovered that on that day the Commonwealth Bank was indebted to the Bank of the Metropolis in the sum of @2900.
    The deposition of Charles Hood, which-appeared to have been ' taken under the act of Congress, was read in evidence by the defendant in error. It stated, among other things, that “ the Commonwealth. Bank never, at any time, owned any of said notes or obligations, or any part or either of them, and had never any right; title, interest, claim, or lien thereon, but that the same were at the time of the receipt, and ever afterwards, the property of said New England Bank, and subject to its order and control.”
    The reading of this deposition was objected to in the court below, and included in the. bill of exceptions; but as the objection was not argued in this court, it is presumed to have been abandoned.
    The action was brought -by the New England Bank against ■ the Bank of the Metropolis, and the judgment in the Circuit Court was in favour of the plaintiff for the whole amount of the proceeds of the notes and bills in question.
    ■ Át the.trial, a bill of exceptions was taken by the defendant, (the present plaintiff in error,) which, after reciting the evidence, ■concludes as, follows:.
    ■ Whereupon, the counsel for defendants prayed the court to instruct the jury, that, if they shall believe from the said evidence that the Commonwealth Bank did for a series of years transact •business with defendants, and, did from» time to time transmit notes ,and other commercial paper to defendants for collection, which were áll .treáted by both parties as if the same were the property of the said Bank of the Commonwealth, who were credited in their account current with the proceeds, and charged 'with the costs and, expenses' which accounts were from time to time adjusted .'upon these principles; that the notes and paper-mentioned in said letter of 13th January, 183S, were endorsed- and transmitted in the ordinary, course of business, without any .notification that any-other party Or person had any interest in said paper, were thus received by defendants, and held by them; that while thus held by them, the said Commonwealth Bank became insolvent or embarrassed in its circumstances, arid after such embarrassment the letters aforesaid of the 13th January, 1838, were written, and at the time of their receipt by defendants, said embarrassed- state, of said Commonwealth Bank was known to defendants, and' there was at that' period a large balance on general account.due defenda'nts from feaid Commonwealth Bank, and the said paper was all regularly endorsed by the cashier of said Commonwealth Bank- to defendants; the said defendants had a right to receive said paper, and the proceeds when recovered, until such balance was paid; and plaintiffs are not entitled-to recover; which instruction, as prayed, the court refused to give.

      Coxe, for the plaintiff in error.
    Bradley, for the defendant.

      Coxe argued,
    1. As to the law, supposing the Commonwealth Bank a nd the Bank of the Metropolis to have been the only parties in the transaction; and, 2dly, How far that law was changed by the intervention of the New England Bank; . On the first point, he cited 17 Wend. 100; 1 Ryan and Moodie, 271; 1 Rose’s Cases, 280, 80; 5 T. R. 488, 491, 493; 1 Esp. Cases, 66.; 2 Bla. Rep. 1154.
    As to the second point; he argued that it must have btfen a secret trust between the two eastern banks, which did not follow the specific paper; and cited 1 Rose’s Cases, 238, 242, 246, 248; 7 T. R. 355; 7 Mass. Rep. 319, 324; 2 Vesey, 585.

      Bradley, contra.
    As to the quéstion of lien, 3 Bos. and Pul. 494; 6 T. R. 14; 7 East, 224, that special liens must be sustained by proof; also Burrow, 2221; 6 East, 28; 1 Atk. 236. That the onus is on the person who claims a lien, 7 Barn. and Cres. 212, in 14 Com. Law. Rep. 30; 3 Bro. Chan. Cases, 21. No lien for general balance on bills casually left. 7 Taunt. 278; see also 3 Mason’s Rep. 222; 1 Maule and Selw. 140; 2 Dall. 60; 1 East, 335; 8 Barn, and Cres. 622, or 15 Com. Law Rep. 319; 7 Bingh. 284 ; 20 Com. Law. Rep. 130; Doug. 303; 3 T. R. 321; 1 P. W, 318; 3 P. W. 185; 1 Salk. 160; 1 Atk. 234; 2 Barn. and Ald. 327; 3 Barn, and Cres. 376; 1 Peters, 28, 30, 35.

      Coxe,

    in conclusion, examined cases cited on the other side to show that they did not apply, and argued that there was a special usage made out between these two banks. ' In 1 Livermore on Agency, 261, cases examined, and same distinction drawn as exists here.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

If this were a question between the-two Bostort banks, .and the cáse depended upon their respective rights, the plaintiff in the court below would, undoubtedly, have been entitled to recover.; for it is admitted, that although the notes and bills were endorsed to the Commonwealth Bank by the cashier of the New England Bank, vet no consideration was given for them; nor. any advances oí rao'nev made upon them; and they were placed in the hands of the first-mentioned bank as the agent of the other, merely for the purpose of collection. The question, howevér, is a different one between- the parties to this suit, and its solution must depend, not upon the nature of the transactions between these two banks, but upon the dealings between the Commonwealth Bank and the Bank of the Metropolis.

It appears from the evidence offered by. the plaintiff in error, that for several years prior to the - insolvency of the Commonwealth Bank, (which happened in January, 1838,-) there had been mutual and extensive dealings between the two last-mentioned banks, and an .accoúnt-cúrrent between them, in which they mutually credited each other with the proceeds of all paper remitted for collection when received; and. charged all costs of. protest, postage, &c. ' Accounts were regularly transmitted from the one to the other, and settled upon these principles; and, upon the face of the paper transmitted, it always appeared to be the property of .the respective banks, and to be remitted by each of them on its own account.

The balances in the account current fluctuated according to the amóunt of paper they respectively transmitted, and these balances;- it. would seem were generally suffered to remain until they were reduced by the proceeds of the notes and bills deposited with each other in the usual course of their business. Thu's, in November, 1837, the Bank of the Metropolis was debtor upon the account in the sum of $2200; but in January, 183.8, when notice of the failure of the Commonwealth Bank was received, that balance had' been extinguished, and the last-mentioned bank was debtor in the.sum of @2900. It is not suggested that-.any information of the interest of the New England Bank, in the paper in question, was ever communicated to the Bank of the Metropolis until after the insolvency of the Commonwealth Bank. And the question is, whether the plaintiff in error has a right to retain, the proceeds of the notes then in its hands to cover the balance of account due upon these transactions..

If the- notes remitted had been the property of the Cominon-r wealth Bank, there would be no doubt of the right to retain; because it has been long settled, that wherever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands for the amount of- his general balance, unless such securities were delivered to him under a particular agreement.

The paper in question was, however, the property of the New England Bank, and was endorsed and delivered to the Commonwealth Bank for collection, without any .consideration, and as its agent in the ordinary course of business; it being usual, and indeed necessary, so to endorse it, in order to enable the agent to receive the money. Yet the possession of the paper was prima facie evidence that it was the property of the last-mentione.d bank; and without notice to the contrary, the. plaintiff in error had a. right so to treat it, and was under no obligation to inquire whether it was held as agent or as owner; and if an advance of money had' been' made upon this paper to the Commonwealth Bank, the right to rethin for that amount would hardly be disputed.

We do not perceive any difference in principle between-an advance of money and a balance suffered to remain upon the faith of these-mutual dealings. In the one case as well as the other, credit is given upon the paper deposited or expected to be transmitted in the usual course of the transaction's between the parties;

There does not, indeed, appear to have been any express agreement that those balances should not be immediately drawn for; but it may be implied from the manner in which the’business was conducted; and if the accounts show that it was their practice and understanding to allow them to stand and await the collection of the paper remitted, the rights of the parties are the same as if there had been a positive and express agreement; and such mutual indulgence on these balances would be a valid consideration; and, like the actual advance of money, give the plaintiff in error a right to retain the amount due on closing the account!

It is evident that a loss must be sustained either by the plaintiff or- defendant in error by the failure of the Commonwealth Bank. We see no ground for maintaining that there is any superior equity on the side of the New England Bank; It contributed to give to the corporation which has proved insolvent credit with the plaintiff in error, by the notes and bills which it placed in, its hands to be sent to Washington for collection, endorsed in such a form as to make them prima facie the property of the Commonwealth Bank, and enabled it to deal with them as if it were the real owner. The Bank of the Metropolis, on the contrary, is in no degree responsible for the confidence which the defendant in error reposed in its agent. And when this misplaced confidence has occasioned the loss in question, it would be unjust to throw it upon the bank which has been guilty of no fault or want of caution, and which was induced to give.the credit by the manner in which the defendant in error placed its property in the hands of an agent unworthy of the trust.

If, therefore, the jury find that the course of dealing between the Commonwealth Bank and the Bank of the Metropolis was such as is stated in the testimony; that they always appeared to be, and treated each other .as the true owners of the paper iputually remitted, and had no notice to the contrary; and that balances were from time to time suffered to remain in the- hands of each other to be met by the proceeds of negotiable paper deposited or expected to be transmitted in the usual course of the dealing between them, then the plaintiff in error is entitled to retain for the amount due on the settlement of the account.

. The question, whether • the balances were usually suffered to lie for a time on account of negotiable paper actually deposited or expected to be received, and wfach formed the consideration on which the defence rested, is not perhaps as distinctly stated as it might have been in the hypothetical instruction requested by the plaintiff in error. . But we think it is fairly to be inferred from the language used in the prayer, by which the defence is put upon the ground that the paper transmitted was treated by the parties as the property of each other; and as the prayer was rejected without any. explanation or qualification, we have no reason for supposing that a different construction Was put upon, it in the Circuit Court.

The judgment must therefore be reversed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.


author: Mr. Justice WAYNE

text:
    Bernard McKenna, Plaintiff in error, v. Charles B. Fisk, Defendant.
    'After pleading the general issue, it is too late to take advantage of'a defect in the writ, or a variance between the writ and declaration.
    Actions of trespass, except those for injury to real property, are transitory in their character.
    Where the writ mentions a trespass with force and arms upon the storehouse of the plaintiff and a seizure and destruction of goods, it covers a transitory-as well as a local action.
    In transitory actions, a venue is laid to show where the trial is to take place. It is a legal fiction, devised'for the furtherance of justice, and cannot be traversed.
    In such actions, such a venue is good without stating where the trespass was in fact committed, with a scilicet of the county in which the action is brought. In the absence of statutory provisions, the courts in the District' of Columbia must apply the principles of the common law to such actions, the pleadings, and'jhe proofs.
    Tj is case was brought up by writ of error from the Circuit Court of the -United States for the District of Columbia and' county of Washington.
    I' the trial of the cause in the court below, the whole of the evi ence offered by the plaintiff was shut out by a decision of the court, and the question was solely upon the correctness of this opinion.
    The writ was as follows:
    The United States of America, to the Marshal of the District of . -Columbia, greeting :
    We commapd you, that you take Charles B. Fisk, late of Washington county, if he shall be. found within the county of Washington, in your said district, and him safely keep, so that you have his body before the Circuit Court of the District of Columbia, to be held for the county aforesaid, at the city of Washington, on , the fourth Monday of'November next, to answer unto Bernard McKenna, in a plea, wherefore, with force and arms, &c., at the county of Allegany; in the state of Maryland, to wit, at the county of Washington, he broke into the storehouse of the said Bernard, and seized, took, detained, and destroyed the goods and chattels, and articles of household of the said Bernard, then and there found, and being of a large value, and other wrongs to the said 'Bernard then and there did, against the peace, dignity, and government of the United States, &c. Hereof' fail not at your peril, and have you then and there this writ.
    Witness, Wm. Cranch, Esq., Chief Judge of our said court at the city of Washington, the 1st day of May, Anno Domini, one thousand eight hundred and forty.
    Issued the 27th day of May, 1840. Wm. Brent, Clk.

    The declaration was as follows:
    Nar.

      Washington County, District of Columbia, to wit:

    Charles B. Fisk, late of the county of Washington aforesaid, yeoman, was attached to answer unto Bernard McKenna, in a plea wherefore, with force bnd arms, &c., at the county of Washington aforesaid, he broke into the storehouse of the said Bernard, and seized, took, detained, and destroyed the goods, chattels,-and articles of household of the said Bernard, then and there found, and being of a large value, and other wrongs to the said Bernard ■then and there did, against the peace, dignity, and government of the United States, and to the great damage of the said Bernard.
    And thereupon, the said Bernard, by Brent and Brent, his attorneys, complains, that the said Charles, heretofore, to wit, on. the- — day of September, in the year of our Lord eighteen hundred and thirty-nine, at the county of Washington, in the District of Columbia, with force and arms, &c., seized; took, detained, and destroyed the goods and chattels, to wit, one thousand gallons of spirituous liquors of different kinds; a large quantity of coffee and of tea; various clothing ready made for sale; two hundred bushels of Indian corn ; all the promissory notes and accounts of sundry persons due to the said Bernard, to the amount of at least @400; all the furniture, bedding, and other articles in said storehouse ; and also the shantee, or storehouse, in which said goods and chattels then and there were found; the said shantee or storehouse being a temporary building erected by said Bernard, and to be removed by him, and not being part of, or attached to, the freehold or real; all of said goods and chattels, bills, bonds, and accounts belonging to the said Bernard, then and there found,- and being of a large value, to wit, of the value of @2000, and carried away and destroyed the same,, and converted the same to his own use, and other wrongs to the said Bernard then and there did, against the peace, government, and dignity of the .United States, &c. And also, for that the said Charles, to wit, on or about the — day of September, 1839, with force and arms, &c., at the county of Washington, in the District of Columbia, broke and entered a certain other shantee or temporary storehouse of the said Bernard, situate and being in said county of Washington, and then and there made a great noise and disturbance therein, for a long space of time, and then and there forced and broke open, broke to pieces, damaged, and destroyed divers, to wit, bottles, barrels, hogsheads, jugs, and demijohns, containing one thousand gallons of spirituous liquor of different kinds, of, and belonging to, the said Bernard, and broke to pieces, destroyed,. damaged, and spoiled divers, to wit, one thousand pounds of coffee ; two hundred pounds of tea; one hundred suits of ready* made clothing; two hundred bushels of Indian corn; sundry-promissory notes, bonds, bills, and accounts due to said Bernard from sundry persons; and also, sundry planks, timbers, shingles, and other materials in the construction of a certain shantee, also belonging to the-said Bernard, then and there found, and of great value, to wit, of the value of @2000, and other wrongs to the said Bernard then and there did, against the peace, .government, and dignity of the United States, &c.
    Arid also, during the time aforesaid, to wit, on the day ana year aforesaid, at the’county aforesaid, seized and took divers other goods and chattels, to wit, one thousand gallons of spirituous liquors of different kinds; a large quantity of coffee and tea; two hundred bushels of Indian' com; @400 in amount of pro- ’ missory notes, bonds, bills, and accounts due to said' Bernard by different persons; sundry ready-made clothing; and also a certain shantee, all of the goods and chattels, promissory notes,bonds, bills, and accounts of the said Bernard, then and there found, and being of great value, to wit, of the value of #2000, and damaged, spoiled, and destroyed the same, and other wrongs to the said Bernard then and there did, against the peace, government and dignity of the United States. By means of which said several premises, he the said Bernard saith, he is worse, and hath damage of #4000, and therefore he brings suit, &c.
    Brent and Brent, for plaintiff. ■

      John Doe and Richard Roe, Pledges, &c.
    And the bill of exceptions was as follows:

      Plaintiff's Bill of Exceptions.

    Bernard McKenna

      V.

    Chárles B. Fisk.
    At the trial of this cause, the plaintiff, to support the issue on his part joined, offered to give evidence by a competent withess, tending to prove that in the summer of the year 1839, the defend^ ant, with a large force of armed men, came to the shantee, or storehouse, of the plaintiff, in Allegany county, in the state_ of Maryland, a place not within the jurisdiction of this court, and entered into the same, and .then arid there seized, took, and- carried away the goods and chattels stated in the declaration, and at the same time offered to prove' that the said shantee or storehouse was erected by the plaintiff for the purpose of carrying on his trade in merchandise on the line of the Chesapeake and Ohio canal, in said county, at, or near a place called Fifteen Mile Creek;, and that, by the usage and practice on the said line of said canal, said shanties were considered temporary buildings, and could be removed or sold at the will arid pleasure of the person erecting them ; and that the said shantee of the plaintiff was a frame house and had posts in the ground.
    And farther offered to give evidence, at the same time, to show the value of said goods and. chattels and shantee, at the time of such taking and carrying away and destruction thereof by the defendant and others, to be more than #1000; but the court would not allow the plaintiff to gi.ve such offered evidence, or any part thereof, to the jury, but refused to permit the same to be given; to which decision and refusal of the court, the plaintiff excepts, and this his bill of exceptions is signed, sealed, and enrolled, this 28th day of December, 1841.
    W. Cranch,.- [e. s.]
    Jas. S. Morsell. [l. s.]
    Test: W. Brent,- Cletk.

      Brent and Brent, for the .plaintiff in error.

      Bradley and Coxe, for the defendant.

      Brent, for plaintiff.
    If there be a variance between the writ and declaration, advantage can only be taken of it by plea in abatement. 2.Wheat. 55. First and third counts relate to personal property; second- count charges an entry, but also injury to the personalty. Precedents in 2 Chitty’s Pleading, 864, and 1 Evans’s Harris, 524 ; cited also Comberback, 324. There is no misjoinder, 1 Chitty on Pleading, 394, edition of 1819; cited also 1 Durnf. and East, 479; 1 Cowp. 171; case in Cbwper since overruled, but not as to the question of pleading.. Distinction between transitory and local actions, 1 Cowp. 177, 179; 1 Strange, 646. In 4 Durnf. and East, 503, there was a count for asportation of goods, but plaintiff-nonsuited, because there was no proof. 1 Brock. Rep. 208; 1 Carth. 131; 2 Williams’s Saund. Rep. 72, note; 2 Peters, 145, where a building erected for purposes of trade is said not to be real estate; 1 Saunders’s Plead. 415; 2 Saund. Rep. 74 (a); Rep. Temp. Hard. 121.

      Bradley, for defendant,
    cited 3 B. C. 393; 1 Chitty’s Pl. 438; 2 Wilson, 394. After party has appeared, the writ is dead. 1 Bos. and Pul. 647. Suppose declaration good; can it be sustained by proof of an injury committed in Maryland? 1 Taunt, 379. This is essentially an action of trespass quare clausum fregit. 2 Saund. Pl. and Ev. 858, marginal page; 1 Chitty’s Pl. 271.

      Coxe,

    on same side, insisted that this was essentially an'action of trespass quare clausum fregit, and that the injuries laid were merely aggravation. Case in 2 Peters only decided the interest' between landlord and.tenant, and not that the latter was unable to bring trespass for an injury to his possession-.

      Brent,

    sen., in conclusion. . Only the second count refers to the storehouse, the first and third are for-injuries to the-personalty. ■ The second is copied exactly from Evans’s Harris.
   Mr. Justice WAYNE

delivered the opinion of'the court..

The declaration in this case contains three counts. It is alleged in the first and third, that the defendant, with force and arms, in. the county of Washington, seized, took, detained, and destroyed the goods and chattels belonging to the plaintiff, and also the shantee or storehouse in which the goods were found,' of the value of $2000. The only difference in the counts is in the specification of the goods destroyed. In the second count, the defendant is charged with having, with force and arms, in the county of Washington, broke and entered a certain, other .sháiitee or temporary storehouse of the plaintiff, situate and being in the county of Washington. •

The defendant pleaded not guilty, and issue was joined on that plea.

The plaintiff, on the trial, in support of his cáse, offered evidence to prove, that the defendant, with a large force of armed men came to the. storehouse or shantee of the plaintiff, in Allegany county, Maryland, entered into the same, and took and carried away the goods and chattels stated' in the declaration, &d, and other evidence was offered to show.the value of the goods. The court refused to permit the evidence to be given to the jury. Upon an exception to this ruling, the case is now before this court.

Tt was first urged in argument, that as the original writ in the case declared that the defendant} with force and arms, &c., broke into the storehouse of the plaintiff, &c., it was such a declaration of the nature of-the. complaint, which the defendant was required to answer, that it must be considered as the gist of each count, and that there was such a variance between the counts and the writ that it would abate the writ. Admit that this fault exists, and that the nature of the plaintiff’s demand must be mentioned in. the writ, that the defendant may know before he appears in court the kind of complaint he is required to answer, and that the declaration afterwards filed, or the writ, or both,.shall be deficient in some legal requisite, or shall contain irregularity, informality, or mistake, which would abate the writ, the defendant is not here in a situation to avail himself of the fault. He has pleaded not guilty. This plea refers to the counts and not to the writ. 'It puts the plaintiff to prove the material allegations in his declaration, and the defendant assumes by it to contest them. To allow, then, a defendant, after the general issue has been pleaded, to avail himself of any defect or mistake in the writ, or variance or repugnancy between the count and the writ, would be, not to. try the cause at issue, but would have the effect to take it from the jury and to place it before the court, upon a point of pleading which has not been pleaded, and which is unconnected with the merits of the cause. Such mistakes, either in the writ, or in a variance between the count and the writ, must be taken advantage of by a plea in abatement. And if the mistake or fault is apparent on the face of the declaration, such as a misstatement of the cause of action, it will be a good cause of demurrer. 3 Black. Com. 301; Com. Dig. Abatement, G, I, 8; Willes, 410; 1 Show. 91; 1 Salk. 212; Duvall and Craig, 2 Wheat. 45, 55. The case, then, is not in a condition- to enable the defendant to avail himself of the objection. But is there any such variance in this case. We think not. The writ mentions a trespass with force and arms upon the storehouse of the plaintiff, and the seizure and destruction of goods. This puts the defendant in possession of the complaint against him, or what he will be required to answer before he appears in court. It is but the commencement of the suit, and is sufficient, if it advises the defendant of the cause of action, without those particulars which •must be set out in the declaration, which, when filed, gives the defendant an opportunity to use any of those defences or pleas to which he may be entitled by the rules of pleading.

It was also urged that the venue laid in each of the counts was so imperfectthat the evidence offered could not be received to support either of them. That it could not be received under the second count,-for that was qua?’e clausum freg-it in the county of Washington, §md the evidence proved a local trespass, within another jurisdiction or sovereignty; and that it could not be received under the first and third counts; because, though they might be counts, for transitory causes of action, it was necessary to lay a venue where the trespass was committed with a scilicet, to let in the evidence at any other place of trial. The evidence offered as to the local count was certainly not- competent; but that is because the venue is local, and cannot be changed into any other county than where the trespass to the really was done, and never c.an be carried-out of the sovereignty in which the land is. But it .is an established rule, that in transitory actions a venue is only necessary to be laid to give a place for trial. Such a venue is indispensable, for without it would not appear in what county the trial was to take place, nor could a jury be summoned to try the, issue. Com. Dig. Pleader, C, 20; 1 Cowp. 176, 177; 5 Term Rep. 620; 2 Lev. 227; Bacon’s Ab. Venue, C; 3 Term Rep. 387. The. venue for trial is a legal fiction, devised for the furtherance of justice, and cannot be traversed. So that, if A becomes indebted to B, or commits a tort upon his person or upon his personal property in Paris, an action in either case may be maintained .against A in England, if he is there found, upon a declaration alleging a cause of action to have occurred in an English county, in which the action'is laid, without taking notice of the foreign place. 1 Cowp. 177 — 179. Lord Mansfield said: But as to transitory actions, there is not a colour of doubt but that any action which is transitory may be laid'in any county in England, though the matter arises beyond the seas. Mostyn v. Fabrigas, 1 Cowp. 161. In Doulson v. Matthews and another, 4 D. and East, 503, (a case in all its particulars like this,) which was an action for entering the plaintiff’s house in Canada and expelling him, and in which there was a count for taking away his goods, Lord Kenyon nonsuited the plaintiff because the first count was local, and because he had not supported his second count by proof. Buller, Justice, also said: It is now too late for us to inquire whether it was wise and politic to make a distinction between transitory and local actions: it. is sufficient for the courts, that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here, which are in their nature transitory, arising out of a transaction abroad; but not such as are in their nature, local. In Rafael v. Verelst, 2 W. Black. 1055, which was a trespass committed in the dominions of'a foreign prince, De Grey, Chief Justice, said: Crimes are, in their nature local, and the jurisdiction of crimes is local. And so as to.the rights of real property, the subject being fixed and im-. movable. But personal injuries are of a transitory nature, and sequunlur forum rei. And though in all declarations of trespass it is laid contra pacem regís, yet that is only matter of form and not traversable. The same doctrine in respect to local and transitory actions has been, repeatedly affirmed in the courts of the states of this Union. 1 Stra. 646; 2 W. Black. 1070; 1 Cowp. 176; 4 Term Rep. 503 — 507; Cowp. 587; 6 East, 598, 599; Com. Dig. Action, 177; 1 Cowp. 161, 177, 178, 184, 344; 2 H. Black. 145, 161; Co. Litt. a, n. 1; 3 Term Rep. 616; 7 Term Rep. 243; 1 Saund. n. 2; Glen v. Hodges, 9 Johns. 67; Gardner v. Thomas, 14 Johns. 134. It then appears from our books, that the courts in. England have been open in cases of trespass other' than trespass upon real property, to foreigners as well as to subjects, and to foreigners, against foreigners when found in England,.for trespasses committed within the realm and out of the realm, or within or without, the king’s foreign dominions. And it also appears from the authorities which have, beén cited, that in a transitory action of trespass, it is only necessary to lay a venue for a place of trial, and that such venue is good without stating where the trespass was in fact committed, with a -scilicet of the county in which the action is brought.

The courts in the District of Columbia have a like jurisdiction in trespass upon personal property with the courts in England and in the states of this "Union, and in the absence of statutory provisions, in the trial of them must apply, the same common law principles which regulate the mode of bringing such actions, the pleadings, and the- proof. It is our opinion, that the exception taken by the plaintiff to the ruling of the court, in respect to the evidence excluded, must be sustained, arid we direct thé-cause to be remanded for further proceedings.

ordeJr.

This cause\came on to be heard on the transcript of the record from the Circhit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and .the samé is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with- directions to award a venire facias de novo.


text:
    Samuel Peck, Plaintiff in error, v. Mary Young.
    In error to the Court for the trial, of Impeachments and Correction of Error, of the state of New York.
   Tfie counsel for the plaintiff in error, having filed a statement in writing, setting forth that the matters ip controversy in this case had been agreed and settled between the parties; it is thereupon now here considered and adjudged by this court tha t this writ of error bé and the saíne is hereby dismissed, at the cost of the plaintiff in error.