author: Mr. Justice STORY

text:
    Jane Dade, Complainant, v. Thomas Irwin, Jun., executor of Thomas Irwin, deceased, and William L. Hodgson, Defendants.
    A court of equity will not interfere; where the complainant has a proper remedy at law, or where the complainant claims a set-off of a-debf arising under a distinct transaction, unless there is sorne peculiar equity Calling for relief.
    Nor will it-interfere where the set-oif claimed- is old and stale, with regard to which the complainant has observed a long silence, and where the correctness of the set-óíf is a matter of grave doubt.
    This was an appeal from the Circuit Court of the United States for the District of Columbia, in and for the county of Alexandria, sitting as a court of equity.
    The case was this.
    In the years 1824 and 1828 Jane Dade -executed two deeds of trust to one William Herbert, for the purpose of securing a debt which she owed to Thomas Irwin, the deceased.
    In 1830, Thomas Irwin, junior, the executor of Thomas Irwin, (who had died in the mean time,) filed a bill against Jane Dade for the sale of the property. Herbert, the trustee, was alleged to be á iunatic, and the bill therefore prayed that a commissioner might be appointed to make the sale.
    Jane Dade in her answer admitted the justice of the claim as stated in the bill. A decree was entered in conformity with the -bill, and William L. Hodgson appointed commissioner to carry the same into effect.
    On the 21st of November, T834, Jane Dade filed another bill on the equity side of the court, stating that the sale was to take place in a few days, and praying that it might be sfispended. She alleged that she was entitled to a-'credit under the following circumstances: that in 1817 she had loaned to one James Irwin $680; that in 1821, he executed his promissory'note to her for $826 63, which was the amount of the above sum with interest; that, to secure the payment of the note, he assigned a debt due to him' from Henderson and Company, which debt was guarantied by Thomas Irwin, who had become liable-for the same; and that the- amount of this debt, with interest, should be deducted from the- sum for which Thomas Irwin’s executor was about to sell her property. The bill further alleged that Thomas Irwin, the deceased, had become personally liable from having sold some cordage to Henderson and Company, Contrary to his instructions. The assignment of the debt from James Irwin to Jane Dade, (through her agent, John Adam,) and the admission of a personal liability by Thomas Irwin, were- alleged to be in the following terms:—
    I do hereby assign to John Adam, the debt due me by Alexander Henderson for cordage sold him by Thomas Irwin, as my agent, for which debt said Irwin is himself liable, having received said Henderson’s note without my consent. This assignment is made to secure to Jane Dade the payment of six hundred and-eighty dollars, with interest thereon from the 16th of October, one thousand eight hundred and seventeen, money borrowed from her by said Adam for my use, for which I have given him my note, payable in eighteen months, with interest.
    Given undér my hand and seal, this 20th day of May, one thousand eight hundred and twenty-one.
    James Irwin. [Seal.]
    (Endorsed) John Adam.
    Test: Lewis Cole.
    - Endorsed. If the within debt cannot be recovered from Alexander Henderson, I am liable for the same: provided full time be allowed for the prosecution of the suit. . Thomas Irwin. .
    The bill further alleged that Ml time had been allowed for the prosecution of the suit against Henderson, and that there was no prospect of any thing being, recovered.
    Upon filing this bill, an injunction was granted to stay the sale.
    In February, 1835, Thomas Irwin, Jun., the executor, filed his answer, denying all knowledge of the note said to have been given by James Irwin, and denying the assignment above recited. The answer admitted that Thomas Irwin hád sold some cordage to Henderson and Company, for which he had taken their note; that the note had been put in suit, judgment rendered upon it, and execution ■issued - that Henderson was discharged under the insolvent act; that the recovery .of the money due on the said note being considered as desperate, his testator had charged the amount to his principals, James Irwin and Company. The answer denied altogether the signature of Thomas Irwin, guarantying the debt; and alleged sundry other .matters to show the absence of equity in the claim of the complainant.
    In November, 1835, the court refused to dissolve the.injunction, .and • suggested .that an issue should be made up, to be tried at the bar of the court sitting as a. court of law, to try the question of the genuineness of the signature of Thomas Irwin..
    This was done, but the jury were not able to agree, and-were discharged.
    Numerous depositions were then taken arid filed, and the case came on to be heard, when the court decreed that .the injunction should be dissolved and the bill dismissed with costs.
    The complainant, Jane Dade, prayed an appeal to this court.

      Neale (in a printed argument) and Brent, for the appellant.

      Jones, for the defendant in error.

      Neale, for the appellant:
    This cause which comes up by appeal 'from the. Circuit Court of Alexandria county, was upon the final hearing in the court aforesaid, dismissed by a majority of the Court, for the following reasons:
    1. Because, in the- opinion of a majority of the' court, the court had not jurisdiction, of the case sitting as a Court of Chancery.
    2. Because, there was no, consideration from which the defendant’s testator could be made liable, either on • account of the assumpsit in writing endorsed on exhibit B, or for blending his principal’s goods with his o.wn — taking a note therefor, and sueing and obtaining a judgment thereon in his own name .for the two amounts so blended, as the record proves.
    3. Because, the complainant [now appellant] forbore to press this claim sooner, by way of set-off to the claim of the defendant’s testator. For these reasons a majority of the court dismissed the bill at the complainant’s cost. - - Dissentient — his honour the chief jupíge.
    These objections, coming as they do from the very,fountain of justice, are justly entitled to high respect and 'grave consideration. But however high and'pure the source from whence they proceed, still it is an' open’ question whether or not they are sustained by the facts of the case — the principles of equity jurisdiction, and the legal liabilities of an agent' to his principal. According to the regular order of pleading, the first inquiry to be instituted is as to the jurisdiction of the court, and upon that point we cite and rely upon the following authorities and accompanying remarks, to wit:
    Johns. Digest, 102; 1 Wash. Rep. 145; Barbour and Harrington’s Digest, 2, 4, 6, 11, 13, 15, 31, 46; 5 Term Rep. 603; 4 Bing. 459; 1P. Wms. 325, 326; 2 P. Wms. 128; 4 P. Wms. 611; 5 Peters, 278 ; 2 Robinson’s Practice, 1, 4; Tucker’s Commentary, b. 3, p. 404; 1 Story’s Equity, 82, and 442-446, sects. 462, 463, 464. In the case of Grandin and Leroy, 2 Paige, 509, it is said, * that' after a defendant has answered a bill in chancery, and submitted himself to the jurisdiction of the court without objection, it is too late to insist that complainant has a perfect remedy at law ; unless the court is wholly incompetent, [as a Court of Chancery,] to grant the relief sought by the bill.”
    Again it is said, “ that whenever the remedy at law is doubtful' or difficult, a Court of Chancery has jurisdiction.” American Insurance Company v. Fisk, 1 Paige, 90; Teague and Russell, 2 Stew. Rep. 420.
    In the case of Ward v. Arredando, Hopkins, 203, the court say, “ the principle is that the jurisdiction may be upheld whenever the parties, Or the subject, or such portion of the subject as is within the jurisdiction, are such that an effectual decree can be made and enforced so as to do justice.”
    [Mr. Neale then entered at great length upon the consideration of the other two points. His argument is omitted, because the decision of the court was placed upon other grounds.]
    Jones, for the defendant in error:
    This base might appear, at the first blush, somewhat extraordinaiy, as being a bill of injunction and an original bill to stay the regular execution of a decree in equity, and to obtain relief against it four years after it had been obtained by the now defendant, Irwin, against the complainant, Jane Dade, with her full and unqualified consent for the sale of real property to pay a debt which she had collaterally secured by a conveyance of the same property in trust, for the specific purpose of being'sold to raise the money for the payment of such debt, if not paid in a given time. It may not, perhaps, seem less extraordinary that, as an original bill it seeks not to set aside the decree for fraud, and that it is not,- in any sense'or shape, or in any aspect whatever, a bill of review; that no error either of law or fact on the face of;the decree, or in any part of the procedure', nor any new matter discovered since the decree, is at all within the scope or objéct of the bill,: but on the contrary, it is admitted that the debt remains precisely as when the decree was obtained, except a small payment since on account of the interest, and about which there is not, nor ever was, the slightest dispute or difference between the parties; and that the'décree stands wholly unexceptionable in itself, and in every part of the procedure, precedent and subsequent. The whole scope and object of the bill is to get the benefit of a pretended set-off, not discovered since thé decree, but just' as well known to the complainant before the decree, and in fact for many years before the commencement of the suit in which the decree wqs rendered, as at the present time. The pretended set-off consisted of a stale demand of more than thirty years standing, wholly unconnected with any transaction involved in that suit: The complainant had, no original interest or concern in it. The only interest claimed by her in it was from a pretended assignment of it by a third person made seventeen years after the demand, had accrued, more than nine years before the decree, and more than thirteen years before it was for the very -first time brought out and asserted in this bill of injunction. The demand itself consisted in a liability pretended to haye been incurred so long ago as 1804, by the.now defendant’s testator, Thomas Irwin, for misconduct as agent of' one James Irwin, (from whom complainant derives her claim as assignee of tRe cause of action,) in haying unduly indulged a debtor to whom he sold goods,intrusted with him by James Irwin to sell on.eommission; and for which misconduct, if satisfactorily made out, James Irwin might have recovered damages in a special action on the case: a cause of action, therefore, purely and strictly legal in, its nature. The only misconduct imputed to-the agent is that of having taken a negotiable note, at 60 days, .of the mercantile firm to whom he had sold the. goods. Complainant pretends-that seventeen' years after this transaction, when the assignment, was made, Thomas Irwin endorsed on the assignment a conditional acknowledgment of his liability, if the debt cannot be recovered of the principal debtor, provided a reasonable time be allowed for the prosecution of the suit.
    Now, supposing the complete establishment of this set-off in every point of law and fact; setting aside all .consideration of the extraordinary length of timé ifeihad been kept back in silence and inaction; and waiving all objection to equity jurisdiction of a demand so exclusively legal; and in fact.sirktissimi juris, in its nature; the appellee might be content to rely solely upon the well-known principles and rules of equity law and practice, which establish- — first, 'that a' final decree enrolled (or what, with'us, is equivalent to enrolment in England, after the term at which the decree.was rendered has passed over,) if cannot be set aside, nor can any relief whatever be obtained against it, by any sort of original bill, unless-fraud, in the decree be distinctly and circumstantially' charged. Secondly, that even ih the case of a bill of review, either demonstrative error in matter of law must be shown on the face of the decree, -Or the fresh discovery of new matter since the decree; the materiality of which, and the positive inability of the complainant to have come at a previous knowledge of it by using reasonable and active diligence, must all be clearly shown by affidavit Thirdly, that after a case for a bill of review has beén thus made out, it cannot be filed without the special leáye of the court; one of the ordinary and standing.conditions of which leave is, that the decree shall first.be performed.- So’ utterly foreign to .all received notions of equity law or practice is a bill of injunction to stay the. execution of a decree, and so utterly inadmissible is any sort of relief by means of one decree in equity against another decree in equity, but for one or other of the special causes, and in one or other of the-special modes of procedure aforesaid.
    Where there is newly discovered evidence it must be shown to be material and relevant, and. to have been out of the power of the party to have: produced before. Mitford on Pleading, 4 ed. pp. 84) 85; 16 Vesey, 354; 2 Ball and Beatty, 462; Ambler, 295; 5 Russell, 195, where the cases are all examined.
    No bill of: review can be filed until the decree is performed.
    . In this case the ground of the bill is deserted. The court' had no right to go back to an original claim in equity; and the claim is too stale and doubtful in its nature to. be admitted. 1 Howard, 108.
    [Mr. Jones was proceeding in his argument, when the court ex-presséd a desire to hear the counsel oh the other side.] '

      Brent, in reply and conclusion.
    This is not merely a bill for an injunction, but also for a discovery as to the time of the origin of the set-off) The suit against Hendersbn was prosecuted until 1835) and the complainant did not think she had a right to ále an original bill until the suit was decided.
   Mr. Justice STORY

delivered the opinion of the court.

This is an appeal from the Circuit Court of the District of Columbia, sitting in Alexandria.

In the year 1824, the appellant, Jane Dade, became indebted to Thomas Irwin, the testator, and executed two deeds of trust for the security of the debt. At the November term of the Circuit Court of Alexandria county, 1830, Irwin, the executor, filed his bill to obtain' a decree of the sale of the estate so cónveyed'in' trust' and a decree was made without objection for the sale, the appellant admitting the justice of the claim; and the'original trustee having become insane, William L. Hodgson was appointed trustee’to make the sale. After sundry delays, the trustee advertised the estate for salé on the 28th of November, 1834; and on the day preceding the intended sale the present bill was filed by the appellant for an injunction against the sale, ' The bill made no objection to the original debt"or decree, but simply set up a claim, by Way of set-off or discount, of a totally’ distinct nature, and unconnected with the original debt, as due by the testator, to her, and for which she alleged in her bill that she ought to receive a credit, to which in equity and strict justice she was-entitled. The claim thus-set up had its-origin in this manner. In May, 1821, James Irwin gave his note for’ $826 63 to John Adam or order, for Mrs. Dade, for money borrowed of her, which note was endorsed by Adam, and on the-same d'ay James Irwin, as collateral security therefor, assigned-to Adam a debt due to him by AIexánder Henderson for cordage sold him by Thomas Irwin'(the testator) as his agent, and for which tlie assignment alleged Thomas Irwin washable, having received Henderson’s note without the consent of James-Irwin. Upon the back of this assignment there now purports to be the following endorsement,' “ If the within debt cannot be recovered' from Alexander Henderson, I am liable for tire same, provided full time be allowed for the prosecution of the suit.” The supposed note-referred to in the assignment was_ dated-in January, 1804, and was for the payment of $901 -83 to the order of Thomas Irwinj and was signed by Alexander Henderson and Co. . This note the bill alleged to include the debt due to James Irwin. Judgment was obtained upon this note in 1805. Afterwards HendersOu, in 1806, became insolvent, and in 1816 a bill in equity was filed for the satisfaction of the judgment out of supposed effects in the hands of certain; garnishees, which suit was not finally disposed of until October, 1835, and Wa3 then.abated by Hendérson’s death.

The answer to the present bill by Thomas- Irwin, the executor, denied the' whole equity thereof. It denied that- James Irwin ever executed the supposed assignment. But he admitted the origin of the. debt due by Henderson and Co.; and that the note taken by the testator-included it ;• but that Henderson having become insolvent he was not liable for that amount, and charged it in his accounts against James Irwin and Co. He also denied the-supposed endorsement oh the assignment to. be genuine, but alleged the same to be a sheer fabrication.

■The injunction prayed for by the bill was granted, -and afterwards the cohrt directed an issue to be tried, by a jury to ascertain whether the testator’s signature to the endorsement was genuine or not. That issue was tried by. a jury, who were unable to agree upon a verdict. The order for an issue was then-rescinded, and .the cause came on for a final hearing in 1839, when the bill was dismissed with costs. There is a great deal of evidence' on both sides as to the genuineness of the signature of the -testator, and also as to the appearance of the ink'of the endorsement being that -of recent’writing. It is also remarkable that in the long interval bétween thé time when the deed of trust was- given in 1824, and -the time when the sale was advertised and the - bill filed, no demand was ever suggested, by or on behalf of Mrs. Dade for the present supposed debt due her as a set-off or otherwise. On the contrary, although repeated and earnest .applications were made for delay of the sale, from the time of the decree in, 1830 until the advertisement in 1834, and some correspondence took-place on -the subject, no allusion whatsoever was made to any such supposed claim or set-off'; but an entire silenee existed on the subject. It is also somewhat singular, that when the bill upon the trust deed was.filed and the decree therein obtained, no suggestion was made by Mrs. Dade in-answer thereto of this supposed claim, not any postponement of the .decree of sale asked upon this account."

- Now, upon this posture of the case, several objections arise as to the maintenance, of the suit... In the first place, the present bill is of an entirely- novel character, Jt is .not- a. bill of’review, or in-the nature of a .bill pf review, founded upon any mistake of facts, or the discovery of any new evidence. It admits in the most unambiguous terms that the decree was right. - Then, it-'sets up merely a cross-claim or set-off of a debt arising under wholly independent and unconnected transactions.- Now it is clear that courts of equity do not act upon the subject of- set-off in respect to distinct and uriconconnected debts, unless some other peculiar equity has intervened, calling for relief; Us, for example, in cases where there has been a mutual credit given by each upon the footing of the debt of the other, so that a just presumption arises that the one is understood by the parties to go in liquidation or set-off of the other. 'In the next place, the remedy for Mrs. Dade, if any such debt as she has alleged exists, is at law against the executor; aqd there is no suggestion that the estate of the testator is insolvent, and that his assets cannot be reached at law. So that the bill steers aside of the assertion.of any equity upon the foundation of which it can rest for its support.

In the next place, the nature and character of the claim itself, now for the first time made, long after the decease of both the Irwins, and thirteen years at least..after its supposed origin. . To.put the case in the least unfavourable light, it is A matter of grave doubt whether the endorsement of the testator’s name on .the assignment is genuine or not. That very doubt would be sufficient to justify this court in affirming the decree of the court below, and leaving Mrs. Dade to her remedy at law, if any she have. But connecting this with such a protracted silence for thirteen years, without presenting or makiñg any application for the recognition or allowance of the claim.to the testator or his executor,.it is impossible not to feel that the merits of the claim at such a distance of time can scarcely be made out in favour of the appellant. It is stale, arid clouded with presumptions unfavourable ti> its original foundation, or present validity. Besides, in cases of this sort, in the examination and weighing of- matters of fact, a. court of equity performs the like functions -as a jury; and we should not incline, as an appellate court, to review the decision to which the court below arrived, unless under circumstances of a peculiar and urgent nature.

The decree of the Circuit Court is, therefore, affirmed with costs.

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 Alexandria, and was argued by counsel. On consideration whereof, It is now here ordered am decreed by this court, that the decree of the said Cirouit Court in this cause be, and the same is hereby affirmed with costs.

       See 2 Story Eq. Jurisp. §§ 1435, 1436.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    William J. Minor, and Catharine his wife, Plaintiffs in error, v. Shubal Tillotson.
    The distinction between writs of error and appeals cannot be overthrown by an agreement of counsel in the court below, that all the evidence in the cause shall be introduced and considered as a statement of facts;
    This case was. brought before the. court at the last term, on a motion tp dismiss, and is reported in 1 Howard, 287.
    The position of the case is sufficiently set forth, in that'report. It now came up on a final' hearing-

      Walker, for the plaintiffs in error,
    examined the-title of the pl&in-tiffs as set forth in the papers in the cause, and contended for its superiority over that of the defendant.

      Webster, for the defendant,
    referred to the decision irí 1 Howard, and said that it was quite evident that there was no error of law-apparent on the face of the record. There is no ruling of evidence, no demurrer, tío bill of exceptions, no agreed state of facts, no special verdict. Nor is it like any of those cases in which the court has acted on undisputed evidence, in cases from Louisiana, as, if such undisputed evidence were equivalent to an agreed; state of facts.
    The whole case, law and fact, was submitted to the judge, as a referee or arbitrator. The law was disputed, and the facts were disputed and whether judgment was rendered on. the facts or .on the law does not appear.' The judgment is general, for the defendant. It is plain that this court cannot revise this judgment, without examining all the evidence, plan, depositions, surveys, &c., just as they would be examined by a jury .
    For toy thing which the record discloses, every point of law may have been decided in the plaintiff’s favour.
   Mr. Justice McLEAN

delivered the opinion of the court.

This ease is brought here by a writ of error, to the Circuit Court for the eastern district of? Louisiana.

The action was commenced in the Circuit Court, to recover possession of certain tracts of land specified in the petition, and for damages, &e.

The defendant set up a title to the premises and pleaded prescription, under the various laws of Louisiana.

This cause was before this court at January term, 1833, on a writ of error, and was- reversed and sent down for further proceedings. In the court below, the death of- the plain iff was suggested, and a supplemental-petition was filed, making his heirs and representatives parties to the suit. The pleadings were amended, and a jury being called and sworn, evidence was heard by them, and certain exceptions taken to. its admissibility by-the defendant; But afterwards, by consent of parties, the jury, before they rendered their verdict, were discharged. The cause was then submitted to the court, under an agreement between the counsel, that «the documents filed in the cause, the plans, and written depositions, contain all evidence and exhibits on which this cause was tried by the court; the whole was read, subject to all legal exceptions except as to the form of taking the verbal testimony; and all other objection to the testimony, accounts, and plans, are to be argued as though the bills of exceptions were drawn out in form, signed and filed. The agreement is made fora statement of the facts in the case.”

A large mass of evidence was received froin both parties, consisting of. concessions and grants under the Spanish government, intermediate conveyances, documents showing proceedings in regard- to the title under the- laws -of the United States,, and parol testimony, involving a great variety of facts, on a consideration' of all of- which-a judgment was rendered by the Circuit Court for the defendant.

From the record, it is impossible for this court to say on what grounds of law or fact the Circuit Court gave judgment. No point as to the admissibility or- effect of - the evidence -was raised on the record' by the plaintiffs 'in error in the Circuit Court. It seems to have been supposed that the above agreement of the counsel, that the evidence in the cause should be considered as a statement of facts, subject to all legal objections, though no objections were stated, was-sufficient ground for a writ of error on .which a revision of the legal questions in the case might He made in this court.

In this view, the writ of error must be considered, as bringing all the facts before this court, as they stood before the Circuit Court. And this court, exercising a revisory jurisdiction,'would be-required to -try die cause on its merits. This' is never done on a writ of error, which issues according -to the course of'the common law.- Under the Louisiana system a different practice may prevail. But, we had supposed, that since- the decisions of the case of Parsons v. Bedford et al., 3 Peters, 445, there could bé no misapprehension in regard to the proceedings of this court on a writ of error; In that case, the court say, «it. was competent for the original defendant to have raised any points of law growing'out of the evidence at the trial, by a proper application to the court; and to have brought 'any error of the court in its instruction or refusal, by a bill of conceptions, before this court for revision. Nothing of this kind was done or proposed. No bill of exceptions was tendered to the court, and no points of law are brought under review.” And the court go on to consider the effect ofthe act of 1824, in regard to the Louisiana practice, and hold that that law'does not change the exercise of the appellate power of this court.

The case referred to had been tried by a jury, but in regard to the revisory power of this court, on a writ of error, there is no material difference between that "case and the one under consideration. In both cases the facts were upon the .record, and this court were called upon to determine the question? of law arising upon the facts.

In the case of-Parsons the court do say, that if the evidence were before, them it would not "be competent for the court to reverse the judgment for any error in the verdict of the jury.” And they say, the refusal of the court, to direct the evidence to be entered on the recordj as required under the Louisiana, practice, was not matter of error,

Whatever opinion, therefore, may have been-entertained in regard to the effect of the act of 1824, on the practice of the Circuit Court of the United States, in Louisiana, before the above decision; after it, there would seem to be no ground for doubt. • The practice of the Circuit Court in Louisiana, since the above case was decided, has conformed to the rule laid down in that case. But in the present cause, there is no statement of agreed facts. If the case be revised on a writ of error, the evidence on both sides must’ be considered and weighed by the court, as a jury would consider and weigh it; and after adjusting the balance, the principles of law, not as they were presented to the Circuit Court, but as they may arise on the evidence, must be determined. This is not the province of a court of error, but of a court of chancery on an appeal from the decree of an inferior court. On such a review, not. only the competency of the evidence must be decided, but also the credibility ofthe witnesses.

The case under consideration was a proceeding at law, and, as the legal points have not been raised by a bill of exceptions, in the Circuit Court,dt is not a case for revision in this court. A judgment'of affirmance is, therefore, entered, at the costs of the plaintiff in error.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the Unitéd States, for the Eastern District of Louisiana, 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 he, and the same is hereby affirmed with costs.


text:
    William Taylor and others, Appellants, v. George M. Savage, Executor of Samuel Savage, deceased, defendant.
    The case of Taylor and others v. Savage, 1 Howard, 282, examined and. confirmed.
    This case came before the court at the last term,- and is reported in 1 Howard, 282.
    It was brought up again on a motion to dismiss the appeal.
    Mqrehead, who made the motion,
    referred tp the decision at the last term, and said that notwithstanding that decision, the case was still here.. He considered the opinion of the court as covering the" whole ground.

      Crittenden, contra.
    Both partjes. appealed from the decision of the court below; but Savage did not perfect his appeal. There is a difficulty in making proper parties, if the case is sent back! The law of Alabama says that administration of the estate shall be attached to the office of sheriff, but his official term will soon expire, and we shall have to litigate with temporary administrators.

      Berrien, on the same side,
    thought there was still a case before the court upon which it could act. It is true that the. decree below was rendered on the same day that the administrator was removed; but notwithstanding this, it was well rendered. If a party dies, the court will direct a judgment to be entered as on the first day of the term. 2 Peters, 481,

      There is no difference between a parly dying and one in a representative character being removed. This must have been the view of the court; the validity of the decree must have been recognised when they said that the voluntary appearance of Benham would cure all defects. The decree could not have been considered null. If the decree was well rendered, the appeal was well- taken, because it vtas taken at the same term whilst the proceedings were within the power of the court. The appeal was prayed and allowed in open court. This court can now proceed either,
    1. By Benham’s voluntary appearance, or
    2. By issuing process to bring him in.
    1. This was decided at the last term.
    2. Benham’s will cannot give the court jurisdiction. The.28th rule provides for the death of a party and summoning another to take his place, The same power that adopted this rule can modify it and say that the successor to an executor can be summoned. The power to establish a general rule involves the power to make a special one to suit' a particular case; general .rules are made only to prevent specific orders.

      Sergeant, in reply and conclusion,
    argued at some length that the decision at the last term covered the case as it now stood. The party on- the other, side must, go into the court below and have the record put into, a-correct.form.
   Mr. Justice STORY

delivered the opinion of the court.

The court have had this case under-consideration, and are' of opinion that it is completely governed by -,the decision made in the' same case at the last term of this court, which is reported in 1 Howard’s Rep. 282. An attempt has been made at'the bar to distinguish the former decision from that how sought, by suggesting -that- the former proceeded mainly upon the ground that .the appeal was irregularly made, and did not directly involve the question now argued. We think otherwise; and that the ground of that decision completely covers all that has been urged upon the present occasion,; not-as mere incidental.suggestions, but as the very hinge on which the case turned. Notwithstanding the opinion of this court then expressed, that the case might- be remanded to the District Court, for the pur-' pose of making the proper parties, the appellants have neglected, during a whole year, to take a single step for the remanding of the case, or instituting any proceedings in the court below; which laches certainly ought not to produce any result in their favour.

The appeal is, therefore, dismissed, and the cause is remanded to the District Courtof the northern district of Alabama, with leave to the appellants to make the proper parties, and to the new administrator, Benham, to become a party to the suit; and that such other proceedings be had as to law and justice shall appertain.

ORDER.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the northern district-of Alabama, and was argued by counsel. On consideration whereof, It is ordered and decreed by this court, that this appeal be,- and the same is hereby dismissed, and' that this- cause be, and the samé is hereby remanded to the said District Court, with leave to the appellants to make the proper parties, and to the new administrator, Behham, to become a party to the suit; and that such other proceedings be had therein as te law and justice shall appertain.


text:
    James Rhodes, Plaintiff in error, v. Moses Bell.
    The District of Columbia being still governed by the laws of Virginia and Maryland, which were in force anterior to the cession, it is not lawful for an inhabitant of Washington county to purchase a slave in Alexandria county, and briitg him into Washington county for sale. If he does, the slave will becomd entitled to his freedom.
    * This case was brought up by writ of error, from the Circuit Court of the United States for the District of Columbia, in and for the county of Washington.
    ■ It was a petition for freedom filed-by Bell. The facts -are set forth in the special verdict, which is as follows ;
    “We of the jury find that previous to the year 1837, the petitioner was the-slave of a certain Lawrence Hoff, a resident of Alexandria county, in the District of Columbia; that in the year 1837 the said Hoff, then owning and possessing the'petitioner as his slave, in the county of Alexandria aforesaid, whereof he eontiiiued to be a resident, did sell and deliver the petitioner to one Little, then 'being a resident of Washington county, in the district aforesaid, and that the delivery of the petitioner was made to the said Little in Alexandria county aforesaid, and the petitioner was immediately removed by said Little to Washington county aforesaid, to reside, and also for sale, whereof said Little was resident; that the said Little shortly afterwards, to wit: about one year or a little more, sold the petitioner to one Keeting, iii Washington county, who sold and .delivered him-to the defendant; that since said' sale to said Little, the petitioner has always been kept and held in slavery in the county of Washington aforesaid; that at the time of the sale and . delivery of the petitioner as aforesaid by Hoff to Little, the petitioner -was more than forty-five years of age, to wit: he was fifty-four or fifty-five years old, an<j is now fifty-nine or sixty years old. And if upon the facts aforesaid the law is for the petitioner, then we find for the petitioner on the issue joined; if upon the facts aforesaid the láw is for the defendant, then we find for the defendant'on the issue joined.” • Whereupon all and singular the premises being by the court here seen, heard, and fully understood, and mature deliberation being thereupon had, the court is of opinion, from the statement of facts aforesaid, that the law is for the petitioner.
    The-writ of error was sued out for the purpose of reviewing this opinion.

      Brent and Brent, for the plaintiff in error.

      Bradley and Hoban,ior the defendant.
    The counsel for the plaintiff in error made the following points:
    1st. That* the removal of said Moses Bell from the county of Alexandria to Washington county, both in the District of Columbia, ánd under the same jurisdiction, as stated in the “special verdict,” did not entitle him to freedom under any law in force in. said district.
    2d. That the said removal was not an importation of said Moses Bell) according to the true intent and meaning of the laws in force in the county of Washington aforesaid.
    3d.' That such removal, even if .it had been illegal previous to the year 1812, was legalized by act of Congress on the 24th of June, 1812; and,-
    4th. That said Moses Bell, .being over forty-five years of age at the time of such removal, was incapable (by the laws in force in said county of Washington) of receiving his freedom by or through ’any act or acts of his master or owner.

      Brmb, sen.,
    referred to the law of Maryland, 2 Maxcy’s Laws, ch. 67, p. 361, which prohibited the importation of a slave into the state, but argued that it did not apply to this case, hecause Alexandria and Washington were only parts of the same sovereignty. He referred also to the act of Congress, of June, 1812, Davis’s Laws, 265, which permits the people of the district to remove their slaves from one county to another; and to 8 Peters, 44, 46, 48, 49, 50, where the question came up incidentally.
    In 14 Peters, 142, 145, the court decided that the counties of the district do not stand to each other in the attitude of separate states.

      Hoban, for appellee.
    In matters of a local character, unless imperative necessity require a contrary course, this court will always adopt and follow the decisions of the local tribunals. Since the act of 1812, in every instance in which the question involved in this case has arisen, the Circuit Court of the District of Columbia has invariably decided that, in order to import a -slave from one county into the other in this district, the party importing must reside in the county, and there own the slave, from which the importation is made. See Maxcy’s Cases, Dunbar v. Bell, October, 1821; Foster v. Simmons, Nepo Williams, November, 1835.
    The case in 14 Peters was upon the - statute of limitations; -it is now cited to reverse our opinions .as to importation of slaves between the two counties. That case asserts fio principle with which we are not familiar; it affirms the judgment of the Circuit Court, It merely 'asserts that as to the limitation of suits, Alexandria and Washington counties, as to each other, are not beyond.seas. As to all local law, the counties have always been entirely distinct the act of February 27, 1801, Davis, 123, declares that the laws of Maryland,-as then existing, shall be the laws of .that part of the district taken from Maryland, and the laws of Virginia of that, part taken from Virginia.
    Even from Maryland to import into that part of the district formerly belonging to Maryland, an act of Congress was necessary; namely, of May, 1803. Davis, 135.
    If it be true that by virtue of the unity of sovereignty,' the fight of free importation, from county to county, exists, then all the adjudication from the cession down is wrong, and the a'c.t of 1812 was unnecessary..
    If the right of importation, as claimed on the ..other-.side, exists, it operates a repeal of the settled policy of Virginia and Maryland, prohibiting the domestic slave-trade between them.
    Maryland and Virginia both prohibit the introduction of slaves, into their territory, except by persons coming to reside. The part of. the district formerly belonging to Maryland is still considered as part of it, as to the introduction of slaves from that state, and the part of the district formerly belonging to Virginia is still considered as a part of that state as to the introduction of. slaves from that state, by the act of May, 1803. If by the act of 1812, a person residing in either county may import slaves into the other, by the act of 1803 he may immediately remove them into the state adjoining, and thus all the policy and the letter of the laws of Virginia and Maryland prohibiting importation are immediately repealed.
    Before the act .of 1812, a resident of one county could only introduce a slave into the other, bringing the slave with him when he came to reside, and then could only sell him in three years. See the act of 1796 of Maryland, Maxcy’s Laws, p. 361, c. 67.
    By the act of 1812, a resident,of either county can introduce his slave into the other without coming to reside: provided he reside in the county from which the importation is intended — and sell .him when he pleases.
    As to the prohibition of freedom on account of age, it- applies only to cases of voluntary emancipation — where freedom- is claimed under the act of the' master — and not in a case of forfeiture, (like this,) where the claim is adverse to that of the master.
    Bradley, on the same side,
    commented on the act of 1812, and said that the permission therein granted was only to remove a slave from one county to another, under certain restrictions; but it did not authorize fresh purchases to be made, and importations for the purpose of sale. He referred, also, to the difference which still existed between the two counties with regard to the issue of a female slave, as showing that the old law still prevailed in each county.
    Brent, in reply and conclusion,
    said that the construction of the law, as stated by Mr. Bohan, had not been acquiesced in b.y the bar or the people of the district. Many thought the decisions wrong in the cases referred to by him; and, at .all events, the opinion of the court below was not the law here. When a slave is brought from Alexandria to Washington, he is not removed fróm one sovereignty to another; and so the court decided in the case of the Bank of Potomac.
    Before the act of 1803, negroes could be carried from Alexandria to Washington for the purpose of being hired out. The act of Maryland of 1796 allowed it.
   Mr. Justice McLEAN

delivered the opinion of the court.

A writ of error brings this case before us from the Circuit Court of the District of Columbia.

Moses Bell, the defendant in error, filed a petition in the Circuit Court representing that he was held in slavery by one James Rhodes, of the said county, and prayed that his rights might be inquired into by the court. The defendant pleaded that the said Moses was not free, &c. The jury returned a special verdict, and found “ that previous to the year 1837, the petitioner was the slave of a certain' Lawrence Hoff, a resident of Alexandria county, in the District of Columbia; that in the year 1837, the said Hoff, then owning and possessing the petitioner as his slave, in the county of Alexandria aforesaid, whereof he continued to be a resident, did sell ánd deliver the petitioner to one Little, then being a resident of Washington county, in the district aforesaid, and that the delivery of the petitioner was made to the said Little in Alexandria county aforesaid, and the petitioner was immediately removed by said Little to Washington county aforesaid, to reside and 'also for sale, whereof said Little was resident; that the said Little shortly afterwards, to wit, about one year or a little more, sold the petitioner to one Keeting, in Washington county, who sold and delivered him to the defendant; that since said sale to said Little, the petitioner has always been kept and held in slavery in the county of Washington aforesaid; that at the time of the sale and delivery of the petitioner as aforesaid by Hoff to Little, the petitioner was more than forty-five years of age, to wit, fifty-four or five years.”

Upon the above facts the Circuit Court held, that the petitioner, was entitled to his liberty. To revise this judgment, the writ of error has been prosecuted.

In the second section of the. act of the 19th of December; 1791, the state of Maryland declared, “that all that part of the territory called Columbia, which lies within the limits of this state, shall be, and the same is hereby acknowledged to be for ever ceded and relinquished to the Congress and government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing, or to reside thereon pursuant to the tenor and effect of the eighth section of the first article of the constitution of government of the United States — provided that the jurisdiction of the laws of this state, over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until Congress shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article in the constitution before recited.”

Previously to the above cession, in 1789, Virginia ceded to the United States, “ten miles square or any lesser quantity for the purposes aforesaid, as Congress might direct,” with the reservation “ that the jurisdiction of the laws of Virginia over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until Congress having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article of the Constitution before recited.” This cession was accepted.

By the first section of the act of the 17th of February, 1801, Congress provided, “that the laws of the, state of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia which was ceded by the said state to the United States, and by them accepted,” &c., “and that the laws of the state of Maryland as they now exist, shall be and continue in force in that part of the said district which was ceded by it, &c.’’ The part of the .district ceded by Virginia constitutes Alexandria county, and the part ceded by Maryland, constitutes Washington county.

As the laws of Maryland and Virginia have been adopted by the above act of Congress, within the counties respectively ceded, it will be necessary to refer to those laws, so far as they have, a bearing in the present case.

By the Maryland statute of November, 1796,2 Maxcy’s Laws, 351, it is declared, “ that it shall not be lawful from and after the passing of this act, .to import or bring into this state, by land or water, any negro, mulatto, or other slave, for sale, or to reside within this.state; and any person brought into this state as a slave contrary to this act, if a slave before, shall thereupon immediately cease to be -the property of the person or persons so importing or bringing such slave within this state and shall .be free.”

The exceptions to the above provisions are,

1. Any citizen of the United States who removes to Maryland, with a bona fide intention of becoming a citizen, may bring his slaves with him, or bring them within one year afterwards, provided such slaves have'been in the United States three years, preceding the time of their removal.

2. By the act of 1797, the above privilege is extended to the executors of such persons, dying within one year after removal, &c.

3. Any citizen of Maryland who being seised and possessed of an estate of inheritance in land in any one of "the adjoining states, who employed slaves in the cultivation of said land, is at liberty to bring such slaves into the state for his own benefit, but not for sale, provided such slaves had been in one of the adjoining states before the 21st of April, 1783.

4. Slaves acquired by descent, by a citizen of Maryland, may be brought into the state to be employed by the owner, but not for sale,

5. Travellers or sojourners may. bring their slaves into the state.

By a law of Virginia passed the 17th of December, 1792, it is declared, “ that no person shall henceforth be slaves within this commonwealth, except such as were so on the 17th of October, 1785, and the descendants of the females of them.” And the second section declares that all “ slaves which shall be brought into this commonwealth and kept therein one whole year together,, or so long at different times as shall amount to one year, shall be free. The third section imposes a penalty on any person who shall import slaves into the cofnmonwealth, and also upon any one who shall sell or purchase such slaves. Exception is made of a person who, with a bona fide intention of becoming a citizen of Virginia, removes into the state, and exception^ extend to some other specified cases.

By the seventh section of the act of Congress of the 3d of May, 1802, it is provided, that no part of the laws of Virginia or Maryland, declared by an act of Congress, passed-the 27th of February, 1801, concerning the District of Columbia, to be in force within the said district, shall ever be construed so as to prohibit the owners of slaves to hire them within, or remove them to the said district, in the same way as was practiséd prior to the passage of the above-recited act.”

Again, by the ninth section of the act of the 24th of June, 1812, Congress provides,- “that it shall be lawful for any inhabitants in either of the said counties (of the district) owning and possessing any slave or slaves therein, to remove the same from one county into the other, and to exercise freely and fully all the rights of property in and over the said slave or slaves therein, which would be exercised' over him, her, or them, in the county from whence the removal was made, any thing in any legislative act in force at this time in either of the said counties to the contrary notwithstanding.”

From the foregoing legislative action it will be seen, that the counties of Washington and Alexandria are governed by the laws of the states to which the territories composing them were respectively attached before the cession. ■ This is especially. true in regare^ to the importation and sale of slaves. Neither the act of Congress of 1801, adopting the laws of the respective states, nor the act of 1802 above cited, made any modification of the Virginia or Maryland law in- regard to slaves. . It was, undoubtedly, the policy of Congress, until the passage.of the act of 1812, to preserve the same relation between the counties of.the district, on this subject, that existed between the two-states.

A slave imported from Virginia to Maryland., not within one of the exceptions named, was free by the Maryland law. And it is n'ot pretended that Bell can be brought within any one of the exceptions. The jury found that Little purchased Bell in Alexandria county, and brought him into Washington to reside and for- sale, the purchaser being a resident of Washington county. . Now independently of' the act of 1812, no one can doubt that this act of the purchaser entitled the petitioner to his freedom, Indeed, he is entitled to it, under the express provision of the Maryland law.

The act of 1812- was designed to enable the owner of slaves in either of the two counties, within the. district, to hire or employ them in the other. And this is the foil -purport of its provision on this subject. It clearly does.not authorize a citizen of Washington to go to the county of Alexandria, purchase a slave and bring him to Washington county for any purpose, much less for the purpose of sale, as found by the jury in this case. If this could be done, it would subvert the whole policy of the Maryland law, which was to- prevent, except in specified cases, the importation of slaves into, the state. And Congress, by adopting the Maryland law, sanctioned its policy.

It is true that the two counties of this district are under the same political organization, and, in a certain;sense, constitute one sovereignty. But this can have no effect upon the question under con- ■ sideration. It depends exclusively upon the laws referred to. No views of policy or of supposed convenience can énter into the decision.

The ease of- the Bank of Alexandria, v. Dyer, 14 Peters, 141, has been relied on by the plaintiff in erlor, as showing that the. counties' of Washington and Alexandria, being united under the same government, caiinot be considered as foreign to each other.

That was a case where the statute of limitation was pleaded to a suit in Washington county. The plaintiffs replied that they were citizens of Alexandria, &c., to which the defendant demurred. And on this state of the pleading the question was, whether the plaintiffs were beyond seas, within the meaning of the Maryland statute. The court held that they were not; “that the counties of Washington and Alexandria resemble different counties in the same state; and do not stand towards one another in the relations of distinct and separate governments.”

The words “beyond seas,” in the Maryland statute, ryere borrowed from the statute of James 1, ch. 21,. and have generally been, construed in this country nót literally, but as meaning, “ without the jurisdiction of the state.” Now, in reference to this construction, the decision of the court whs correct, but it can have no direct bearing upon the question under consideration. That the District of Columbia must be-considered as exercising the same general jurisdiction in both, counties, is undoubted; but the rights of its citizens are not governed by the same laws. The counties of Washington and Alexandria, excepting the modification made by the act of 1812, are as foreign to each other, as regards the importation of slaves, as are the states of Virginia and Maryland; Such we understand to be the settled doctrine of the Circuit Court of this district. And this is no unsatisfactory evidence of what the law is. An ¿cquiesence of many years in a course of decision involving private rights, should not be changed except upon, the clearest ground of error.

There is a provision in the Maryland law prohibiting the owner of a slave from manumitting him, if he be over forty-five years of age; and this is urged by counsel as. a reason why the petitioner in this casé should not receive Ids liberty. He is now near sixty years of age; but how his rights are to be affected by a law which restrains the master, is not perceived. He claims to be wrongfully held in servitude, and the court think his claim is founded- in law. Now, shall he be kept in servitude because his master, if he were disposed, could not manumit him ? The law makes him free .without the concurrence of .his master. Slaves brought into the state of Maryland, in violation of the law, are declared to be free without reference to their age. And the court cannot affix a condition to this right of freedom, which the law does not authorize. Upon the whole, we are unanimously of opinion, that the judgment of the Circuit Court should be affirmed with costs.

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 affirmed with costs.