author: Mr. Justice McLEAN

text:
    David Shriver Junior’s Lessee v. Mary Lynn, William Lynn, George Lynn, John G. Lynn, James C. Lynn, Ellen Jane Lynn, Mary Magruder, Jonathan W. Magruder, Anna B. Tilghman, Frederick Augustus Schley, (who married with Francina, C. Lynn deceased, daughter of David Lynn) Frederick Augustus Schley, William Henry Schley, and Eliza M. Schley (children of Frederick A. Schley and Francina his wife) devisees of David Lynn.
    The following words in a will, viz.: «I give and bequeath unto my brother, E. M., during his natural life, Í00 acres of land. In case the said E. M, should have heirs lawfully begotten of him in .wedlock, I then give and bequeath the 100 acres of land aforesaid, to him, the said E. M., his heirs and assigns for aver; but should he, the said E. M., die without an heir so begotten, I give, bequeath, devise, and desire, that the 100 acres of land aforesaid, be sold to the highest biddei, and the money arising from the sale thereof, to be equally divided amongst my six children,” give to E. M. only an estate for life, and not a fee-simple conditional.
    Under the statute of Maryland, passed in 1785, (1 Maxcy’s Laws, chap. 72,) the chancellor can decree a Salé of land upon the application of only a part of the heirs interested; and as he had jurisdiction, the record must' be réceived as conclusive of the rights adjudicated.
    The decree of the chancellor must be construed to conform to the sale prayed for in the petition, and authorized by the will; and a sale beyond that is not rendered valid by a final ratification.
    A sale ordered by a court, in a case where it had not jurisdiction, must be considered as inadvertently done, or as an unauthorized proceeding; and, in either branch of the alternative, as a nullity.
    This case was brought up by writ of error from the Circuit Court of the United States for the. district of Maryland, and was an ejectment for 100 acres of land, lying in Alleghany county, in that state.
    The plaintiff, who was also plaintiff, in the court below, claimed title under a sheriff’s sale; but the opinion of the court, upon a case stated, being against him, he brought it up to this court.
    The facts were as follows:
    In 1789, Zachariah Magruder was in'possession of a tract of land called George’s Adventure, containing 456 acres. His title was admitted, upon all sides, to be good;
    In that year he made his will, which contained the following bequest to his wife: I also give to my said beloved wife the full use bf my dwelling plantation, containing in the whole, cleared and uncleared, after- the legacy hereafter given is taken out, about 356 acres, called George’s Adventure, to be by her peaceably and quietly possessed and enjoyed without molestation- during her. natural life.
    After sundry other bequests, ha- goes on to say,
    Item.- — I give and' bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land, being part of a tract of lancf called George’s Adventure, lying-and being in Washington county, and state .aforesaid; to be laid off at the upper end of the tract aforesaid, so as to include the plantation whereon heiiow lives.' In case the said Elias Magruder should have heirs lawfully begotten of him in wedlock, I then give and bequeath the 10.0 acres of land aforesaid to him, the said Elias Magruder, his heirs and assigns, for ever;' but should-he, the said Elias Magruderj die without an heir so begotten, I give, bequeath, devise, -and desire, that the 100 acres of .land aforesaid -be sold to the highest bidder, and the money arising from the . sale thereof to be equally divided 'among ray six. following children, to wit: Samuel. Beall Magruder, William B. Magruder, Richard. Magruder, Josiah Magruder, Norman Bruce Magruder, and Nathaniel Beall Magruder.
    Item.. — I devise, give, bequeath, and desire,, that the remaining part of my land, called George’s Adventure, being about 356 acres, lying and being in Washington county, and state aforesaid, to be sold to the highest bidder, by, and at the discretion of my executrix and executor hereafter named; and the money arising from such sale to be divided equally amongst my six sqns, to wit; Samuel Beall Magruder, William Beall Magruder, Richard Magruder, Josiah Magruder, Norman Bruce Magruder, and Nathaniel B. Magruder.
    After some further provisions, the testator appointed his wife and son executrix and executor.
    In 1796 Zachariah Magruder died, and his brother Elias took possession of the 100 acres, which were laid off agreeably to the directions of the will. The title of the defendants is derived wholly from. Elias Magruder, who conveyed the 100 acres to David Lynn, their ancestor, in fee-simple in 1806.
    In 18Ó5, four of the six children mentioned in the will, filed a petition in the high court of Chancery of Maryland, stating that the executrix was dead; that the letters testamentary which had been granted to the executor had been revoked; that no sale of the real estate had been made; that the testator devised that the remaining part of his land called George’s Adventure, being about 356 acres, should be sold to the highest bidder, and the money equally divided amongst his six children, including the petitioners. The petition prayed the court to grant them relief, by appointing a trustee to sell all the property devised to be sold, and apply the proceeds to the purposes directed by the will.
    The chancellor granted .the prayer, and decreed that the real estate directed to be sold in the will, should be sold, and appointed a trustee in the usual way.
    The decree ran thus: “That Roger Perry be, and he is hereby appointed trustee for making the said sale, and that the. course and manner of his proceedings shall-be as follows: He-shall first file with the register of this court a bond executed by himself and a surety or sureties approved by the chancellor,”. &e. &c.
    The decree -was passed at'December session, 1805.
    On the 10th of March, 1806, Elias Magruder conveyed, to David Lynn, as has been already stated, the 100 acres of land upon which he, Elias, lived.
    On the 22d of March, 1806, the trustee proceeded to-s.ell the 356 acres mentioned in the will, stating in his report that he excepted the 100 acres devised to Elias Magruder, saying, “ The 100 acres, part of said tract devised to he sold' in casé Elias Magruder should die without heirs, as expressed in the will, still remains unsold.”
    The report passed through the regular process, and was finally ratified in June, 1807: the nett proceeds of sale being equally amongst the six children of Zachariah Magruder.
    At some period, prior to the 1st of January, 1812, Elias died unmarried, not having at the time of his decease, nor ever having had, any heir or issue begotten by him in wedlock.
    On the 15th of February ¿ 1812, the trustee proceeded to sell, as he said' in his report, “ all the remaining part of the real estate of Zachariah Magruder, deceased, consisting of 100 acres of land, part of a tract of land called George’s Adventure, it being that part devised to Elias Magruder,” when Walter Sheer became the highest bidder and purchaser.
    This report was finally ratified in February-, 1813; and, in August, 1813, the trustee executed a deed to Slicer,-describing the 100 acres by the same metes and bounds by which they had been originally located when Elias Magruder took possession under the will.

      In October, 3817, one Arnold, for the use of David Shriver, junior, the lessor of the plaintiff in this cause, and one Lamar, for himself, brought suits against Sheer id the. county couft of'Alleghany county.; and in February, 1818, one Evans, also for the use of Shriver. brought suit against Slieer in the. same court.
    The defendant in the present , case relying, as a ground of defence, upon an outstanding title existing hi Lamar or his heir's under these proceedings, and the plaintiff resting his -title wholly upon them, their progress is exhibited ip a tabular form, showing the-history of each one, up to the consummation by a sale of the 100 acres now in dispute.
    ARNOLD 1817. Sues Slieer. EVANS LAMAR Sues Slieer.
    1818. Gets, judgment: against Slieer. Judgment- su-. perse'ded. Sues Slieer
    . 1819. June — Sues out Fi. Fa. October — Fi; Fa, countermanded. April 20. Gets judgment. June — Issues Fi. Fa. October — Fi. Fa. countermanded. : April 28. .Gets judgment. October — Issues Fi. Fa.
    1820. February 2d, Fi. Fá. “to 1'U,” February — Inj unction on the judgment.
    1821.
    1822. April — Answer filed; October — Injunction dissolved. ■
    1823. December 31.,. , Sci. Fa. issued. December 31. .Cci. Fa. issued. 2d. Fi. Fa. 10Q acres sold to Lamar. In September sheriff makes deed.
    1824. Fiat. Fi. Fa. issued. 100 acres sold to Shriver by sheriff. Fiat. Fi. Fa. issued. 2d Fi. Fa. 100 acres sold to Shri- . ver by sheriff.
    1825. Sheriff . make's dfeed to Shriver. Sheriff makes deed .to Shriver.

      In 1827, Shriver, the purchaser under the two elder judgments, brought suit in the Circuit Court of the United States, he being at that time a citizen of Virginia, against David Lynn, the assignee of Elias Magruder, as already stated.
    In 1836, the death of David Lynn was suggested and his devisees became defendants.
    In 1839 a verdict was found for the plaintiff subject to the opinion of the coulrt upon a case to be stated; upon which casé, when stated, the opinion of the court below was in favour of the defendants and judgment rendered accordingly. To review this opinion, the writ of error was sued out.
    . It was agreed at the trial of the cause, «that the court might, in deciding this case, presume from the aforesaid proceedings in-Chancery, any fact which they would direct a jury to presume from said proceedings.”
    JR. Johnson, for the plaintiff.

      Schley, for the defendants.
    The points made respectively were, for the plaintiff,
    1. That by the will of Z. Magruder, of 26th March, 1789, Elias Magruder took a life-estate, only in the land sued for, and, under the facts in the case, had no other estate to his death; and that, at his death, the land was to be sold for the benefit of the six children of the testator mentioned in the devise.
    2. That this being the case, the Court of Chancery of Maryland had authority, upon the petition of four of such children, to decree a sale of the land.
    3. That the court did so decree, and
    4. That the sale made under the decree to Walter. Slicer, under whom , the lessor of the plaintiff claims, passed to Slicer the fee, which is now.in the plaintiff’s lessor.
    For the defendants,
    1. -That tinder the devise to Elias Magruder, (in the 8th clause of the will of Zachariah Magruder,) said Elias Magruder virtually took, under the laws of Maryland, an'estate.in fee-simple..
    2. That even if Elias Magruder, under tire facts stated, took only an estate for life, yet the proceedings in Chancery were not effectual to vest in'Walter Slicer (through whom the plaintiff claims) a legal title to ,the parcel of land sought to be recovered in this suit.
    3. That even if, upon the facts stated, said Walter Slicer acquired a legal title to said land, yet the lessor of the plaintiff, upon the whole facts, does not show that such title had become vested in-him at the time of the demise. •
    4. That even if. the lessor of the plaintiff had, at the time of the. demise, a legal title to undivided parts of the tract, he could- not recover at all, the demise being for an entirety.
    Johnson, for plaintiff.
    The first question is, what' estate- did Elias Magruder take under Üie will ? "We say, only an estate for life: the other side say that it was eithe. an éstate in fee, by virtue of the rule in Shelly’s case, or a fee-tail, or a fee-simple conditional at common law. It is perfectly clear that if the will had stopped at the first paragraph, the estate devised would have been only for life; the doubt is as to the second paragraph. If the contingency happened, the estate was to become a fee to the devisee; if he died without children, then it was to go to the children of the testator:
    ' Is it enlarged by the rule in Shelly’s case ?
    1 Rep. 93 contains the rule. It was recognised as án old one, and is, that where an estate is. given for life with limitation over to heirs, it is an estate in fee, and taken by virtue of the rule. But if the contingency had happened here, the devisee w.o’M have , taken under the will an estate in fee; and the distinction is in his taking under the will or under the rule. Fearne, Con. Rem. 28, note; 1 Hargrave’s Law Tracts, 490; 1 Preston on Estates, 263 to 419; 4 Kent, 214.
    Is it a conditional fee-simple ?
    The defendant is understood-to place it in this class. But a conditional fee-simple at common law is an estate' limited over to some particular heirs, in exclusion of heirs general; - Before statute off Westminster, courts held that where the contingency happened* the estate became absolute and could be aliened; but in no other Case -than where heirs special are preferred to heirs general. A qualified or base fee is where a deed is made to A. and his heirs, tenants of the manor of Dale; where they hold, only as long as .they are tenants. The error of the other side is in not distinguishing between a fee-simple conditional at Common law and an estate to arise upon condition. The difference between estates upon condition precedent and condition subsequent is, that in the former there is no estate in the party until the contingency happens, whilst in the latter there is. Here, .tiie estate in fee was to arise upon the happening of a future contingency, in case Elias married and had children; otherwise he was a mere tenant for life¡. 2 Bla. Com. 109.
    2. Was the chaneeiy proceeding regular?
    1. ' Did thé Maryland statute give jurisdiction ?
    2. Was it a case of ordinary chaneeiy jurisdiction ?
    The Court of Chancery is created by the constitution of the state, and .invested with all chancery powers, .unless restrained - by law. In-case of doubt, we look at the statute to see whether it takes away any of the ordinary chancery powers. The act of 1785, chap..72, is intended to enlarge jurisdiction; its title being, '“An act to enlarge the jurisdiction of the High Court of Chancery.” The 4th section is applicable to this case. The executrix was dead, and the authority of the executor was revoked. No regular- bill was' necessary; a petition was sufficient. .All that the chancellor had to be satisfied of, were two things: 1st, That the sale ought to be made, and 2d, That there was no person to make it.
    2. It was a case also of ordinary chaneeiy jurisdiction. A trust was to be executed and there was no trastee. The petition prayed for a sale, and the decree was that all directed by the will to be sold should be sold;. The trustee, therefore, sold the whole.
    ‘ Our title is good, if Slicer’s was. He claims under the proceedings of a court of competent jurisdiction, whose decision must b.e presumed to be right. Elias must be presumed to have been dead, if it is necessary to sustain the authority of the court. It is objected also that it does not appear that the trastee ever gave a bond; but this court must presume that every thing was properly done. 10 Peters, 449.
    It is also objected that the power to sell was "in the • surviving executor. This court and the Court of Appeals in Maryland have differed upon this point 10 Peters, 533, that it survives; 4 Gill and Johnson, 323, that it does not. But the ground of the decision in' Peters was; that the sale was to be made to pay debts. In this case there were no debts.,. The devisees cannot deny the validity of the chancery proceedings.

      Schley, for defendant.
    By the laws of Maryland (1789, chap. 45) estates of fee-tail general or fee-simple conditional are in fact fee-simple estates, because they aré descendible as such, (1 Harris and Gill, 111,) and are liable for the debts of the deceased. Elias took a fee-simple conditional. 2 Preston on Estates, 289, 295, 298, 303, 304
    Elias had something more than an estate for life. 1 Brockenborough, 131; 2 Virginia Rep. 11 ; 7 Harris and Johnson, 244; Fleta, lib. 3, chap. 9, page 186;. Bracton, 17; 1 Reeves’ History of English Law, 293; 2 Preston, 296; Plowden, 233, 250; 2 Lord Raymond, 779: Co. Litt. 18.
    If Elias had issue, they would have taken by descent after his death; he must therefore have had afee in himself. 1 Preston on Estates, 264; 2 Powel on Devises, 602; Willes, 3; 2 Gill, and Johns. 458.
    Suppose Elias had only an estate for life; how does Slicer get the residue ? In 1805, Elias Magruder wa*. alive, because in 1806 he sold land. The chancellor' o'rdered the land sold' free of ail claims of heirs or devisees; but Elias was a devisee and living on the land; Was his land sold over his head ? "He had not joined in the petition, or forfeited his estate. The. petition, therefore, does not include the 100 acres, but states that the 356 acres, had not been sold. True, the decree covers all; but it must be limited by the petition.
    The act of 1785 does not include this case, because it is confined to cases where.the party neglects or refuses to act; but Elias being alive, there was no neglect to sell the 100 acres, because the time to sell had not yet come. Elias might even then be married and have children.
    The power of the trustee was only that which the executor had, the proceeding being ex parte. Ellas did not die until 1812, and the chancéllor could not divest him of his rights upon a petition filed by other persons.
    The bond of the trustee is a condition precedent, and' he had no right to act without complying with'it. The law required a bond. The case in 2 Gill and Johnson, 114, is not applicable, because no final ratification appeared there, and there was iñuch evidence on the subject.
    Suppose that Slicer had a good title, did the plaintiff obtain it? The two elder judgments were dormant for three years prior to Lamar’s sale. If there is an outstanding title in Lamar, the plaintiff must fail in his ejectment; on this subject some analogous cases may be found in 12 Wheaton, 179; 4 Cond. Rep. 457, note.
    In Maryland, there is no law' limiting the lien of á judgment, but the judgment itself is good for twelve years. The chancellor, however, decided (2 Bland Ch. Rep. 323) that a judgment cannot lie dormant for ever. Some illustrative cases are 2 Harris and Johnson, 66; 8 Gill and Johnson, 38; 7 Gill and Johnson, 360.
    It is settled in Maryland that there must be a scire facias where a new parly is to be charged; such parly must have a-day in court. 2 Harris and Johnson, 72; 10 Gill and Johnson, 373.
    4. The demise is for an entirety.
    Two children did not join in the petition, and tire record does not show that they ever received a distributive share of the proceeds of the second sale of 100 acres. Their title is not extinguished; and whatever máy be the condition of the other four children, the plaintiff, not having acquired the title of these two, cannot succeed under his present demise,
    Johnson, in reply.
    It does not appear that any of the children ever' Objected to the proceedings of the trustee.
    As to the 356 acres, it must be admitted that there was no other' mode of making a sale than under, the act of 1785; and there was the same necessity as to the 100 acres. The executor had .not power to sell them; here was a. case, then, where property ought to be sold; and there' was nobody to sell it. If the chancellor appoints a. trustee, he has decided that a trust exists. This court has said that the decision of a court of competent jurisdiction, must stand; and must assume that the necessary facts were proved.
    The Court of Appeals in Maryland have decided (M. S. Denison and Dublin) that a proceeding under the fourth section of the act of 1785 is like a suit. One person is enough to petitionothers’ can go in and be heard. If one were not enough to petition, the act would be of little use. The trustee was directed to « sell and convey the property,” not merely the interest of the petitioners. The act was designed, for a practical purpose, to reach the estate.
    Was the trustee appointed for the 100 acres also ? True, the petition speaks only of 356 acres, but it refers to the will, and states it. The same children who were to receive the proceeds of the 356 acres, were, by the will, also to receive the proceeds of the 100 acres. The right to the 100 acres was prospective and contingent; but the trustee was vested with power to sell all, for the sake of convenience. It is objected that Elias was still alive; but the court may as well presume him to be dead, as that there was error in the decree. The admission in the record is, that the court may presume any fact which they would • instruct a jury to presume. If, therefore, they would instruct a jury to presume the death of Elias,'it can presume it too. The trustee first reported that he 'had not sold the 100 acres, and afterwards reported specially that he had, The -court, by ratifying this last report; have made it conclusive that they considered the trustee to have been authorized.
    This party cannot object to these proceedings; if any persons could, it would be the children who djd not join, but the court would not now -tolerate an ejectment, if brought by them.
    The bond is not nfecessary to give the chancellor jurisdiction, but to secure the parties; its omission is' a mere irregularity, and not to be brought into .view upon a collateral matter. Besides, it must be presumed to have been given. In 2 Gill and Johnson, 114, a ratification was presumed, page 130.
    It is said that we do not show a title to the whole. But the two children who did not petition received, their share of the proceeds," and by that act made themselves parties. They are estopped. The decree gave authority to sell the whole land, and the whole title was conveyed to-us.
    The Court of Appeals did say once, that a plaintiff could not recover an undivided' part, claiming title to the whole. The act of 1832 corrected this. This act has been repealed in part, but not in this.
    As to an outstanding title in Lamar:—
    Until the chancellor said otherwise, the profession had no doubt of the propriety of the lien of an elder judgment. Before' the act of 1823, execution had to be issued within a year and a day. Now three years are allowed. All judicial- liens must be noticed by all. A purchaser under a junior judgment must be presumed to have notice of the first. The chancellor says that the object of requiring a prompt issue is to protect purchasers; but they are already protected by the records.
    What estate did Elias take ?
    It is true that an estate-tail general or fee-simple conditional is, by the laws of Maryland, synonymous with a fee-simple. . But a fee-simple conditional is where the limitation is to heirs special, to' the exclusion of heirs general. 2 Bla. Com. 110. There is no such special limitation in this will. No estate of inheritance passed on the death of the testator. 2 Bla. Com. 151, 154, defines an estate upon condition.
    If a fee passed upon the death of the testator, it was not by virtue of the will. Rules giving a different direction to an estate from that pointed out in the will are not applied except from necessity. The devise to the children is a good executory devise, to take effect unless a contingency happened. The object of the testator was to benefit his children; but the argument of the other side would defeat that intention.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case comes up on.a writ of error to the Circuit' Court for the' district of Maryland. An action of ejectment was commenced by the lessor of the plaintiff, to recover the possession of 100 acres of land, part of a tract called George’s Adventure, situated near the town of Cumberland.' In the Circuit Court a verdict was found for the plaintiff, subject to .the opinion of the court upon a cause stated. A judgment was entered for the defendant; and the cause is now before us, on the facts agreed.

By his last will and testament,'Zachariah Magruder, a citizen of Maryland, among other things devised to his wife Sarah, the full use of his dwelling-plantation, containing in the whole, after a certain legacy was deducted, about 356 acres, called George’s. Adventure, in Washington county; to be by her peaceably and quietly possessed and enjoyed without molestation, during her natural life.”

The will also contained the following, “ I give and bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land, being part of a tract of land called George’s Adventure,' lying and being in Washington county, and state aforesaid; to be laid off at the upper 'end of the tract aforesaid, so as to include the plantation on which he now lives. In case the said Elias Magruder should have heirs lawfully begotten of him in wedlock, I then give and. bequeath the 100 acres of land aforesaid to him, the said Elias Magruder, his heirs and assigns, for ever; but should he, the said Elias Magruder, die without an heir so begotten, I give, bequeath, devise, and desire, that the 100 acres of land aforesaid be sold to the highest bidder, and the money arising from the sale thereof to be equally divided among my six following children, to wit: Samuel,” . &C-. The testator having died, proof was made of his will, and letters testamentary were granted, the 3d of May, 1796, to Sarah Magruder his wife and his son Nathaniel B. Magruder, named as executrix and executor in the will.

After the decease of the testator, Elias Magruder took possession of the 100 acres of land devised to him, and being so in possession he conveyed the tract to David Lynn, who devised the same to the present defendants.

On the 30th of December, 1805, Samuel B. Magruder and three other, brothers, sons of Zachariah Magruder, filed .their petition to the chancellor of Maryland, representing that their father after making particular dispositions of property, devised that the remaining' part of his land, called George’s Adventure, being about 356 acres, should be sold to the highest bidder, by and at the discretion of his ' executrix and executor, and the money equally divided amongst his six children, including the petitioners.”

The petitioners stated that the executrix was deceased, and that ' Nathaniel B. Magruder, being, insolvent, at the instance of his sureties, his power as executor had been revoked by.the Orphan’s Court. And the petitioners prayed that a trustee might be appointed “ to sell all the property devised to he sold by the will, and such other and further relief,” &c. The. will was filed, as an exhibit.

On the day of filing the petition, the chancellor decreed, “that the real estate in the said will directéd to be sold shall be sold; that Roger Perry be appointed trustee,-who. shall, give bond in $2000, conditioned for the faithful performance of the trust reposed in him by the decree, or to be reposed in him by any future decree or order in the premises, and that he shall proceed to sell,” &c.

Afterwards on the 22d of May, 1806, the trustee reported that he “had sold the real estate ip the said will and decree mentioned,” ' and had made distribution, &c-. At the close of his report he says, “ the 100 acres, part of the said tract devised to be sold in case Elias Magruder should die without heirs, as expressed in the will, still remains unsold.” The sale, was ratified by the chancellor.

And afterwards, on the 9th of June,. 1812, the trustee made a' second report, that he “ had sold the remaining part of the real estate of Zachanah Magruder, deceased, consisting of 100 acres of land,” &c. This sale was also ratified by the chancellor, and a deed was executed to Walter Slicer, the purchaser. In the year 1818, a judgment was obtained against Walter Slicer, and two others in the year 1819. On one of the junior judgments execution was issued, under which the land in question was sold to Lamar. On the other junior judgment, obtained at the same term, an execution w&s issued, and the same tract was sold, after the above sale, to David Shriver, jr., the lessor of the plaintiff He also purchased, subsequently, the same tract, under the prior j udgment.

The first question for consideration arises out of the devise, in the will, to Elias Magruder. Did he take a life-estate' only, or a fee-simple ? That he took an estate in fee-simple conditional in the 100, acres, is urged by the defendants’ counsel.. And a statute of Maryland of 1786, entitled “an act to direct descents,” 2 Ketty’s Laws, chap. 45, which provides that lands held “ in fee-simple or fee-simple conditional, or in fee-tail to the heirs of the body generally,” shall descend in the same manner, is relied on as giving a fee-simple to the devisee. Under this' statute, it must be admitted, whether- the estate vested be technically considered a. fee-tail general or a conditional fee-simple, in effect, it is a fee-simple.

In 1 Inst. 20 s. it is said that “ all limitations-confined to the heirs of the body, either by direct or circuitous expression, and which are not estates-tail under the statute de donis, remain conditional .or qualified fees at the common law. A gift of land to a man and his heirs generally, if he shall have heirs of his body, without any other expression to qualify the word heirs óf his body, is a conditional fee. Fleta, b. 3, c. 9, 136. And in Plow, 233, it is said, “ and. the Lord Dyer in his argument took exception to the ratification, for that it confesses the estate-tail in King Henry VH., and then says, that he having issue, Prince Arthur, entered and was seised in fee; whereas, he said, the-having issue did not make him' to have the fee, for the fee e''her accrued to him by the. remainder or never.” The same doctrine is found in page 250; Machell v. Clarke, 2 Lord Raym. 778. By the statute de donis, Westm. 2, 13 Ed. 1, a fee-simple conditional estate at common law, in certain cases, was converted into a fee-tail which, by alienation,'the ancestor could not change.

The estate under consideration, it is "insisted, is a conditional fee-simple ; or in other words that the fee vested is liable to be.defeated on the failure of heirs as provided in the will. On the other side it is argued, that the condition was a precedent one, which must happen before the fee vested. The doctrine above cited seems to favour the first of these positions, as does also the rule in Shelly’s case. By that rule, «in any instrument^ if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first-taker takes the whole estate.” This rule had its origin in feudal times, and was, perhaps, in no small degree influenced by considerations' which have long since ceased to exist. The rule, Mr. Preston says, 1 Pres, on Estates, 369, "is of positive institution, and has,this circumstance of peculiarity and variance from rules of construction.” “ Instead of seeking the intention of the parties and aiming at its accomplishment, it interferes in some, at least, if' not in all cases, with the presumable, and in many instances, the express intention.” “ In its very object, the rule was levelled against the views of the parties.”

That-this effect has been given to the, rule by some adjudications is admitted. But there is a rule of construction applicable to ail .instruments, .and especially:to wills, that, is, the intention, of the parties, which should control any arbitrary rule however ancient may be its origin. And of this opinion was Lord Mansfield, in Perrin v. Blake, 4 Burr. 257.9. He says, “ the rule is not a general proposition, subject to nO control, where, the intention is on the other side, and where objections may be answered.” . And he agreed, as Mr. Preston remarks, with Justices Wilmot and' Aston, that “ the intention is to govern, and that Shelly’s case does not constitute a decisive uncontrollable rule.” Mr. Justice Buller, in • the case of Hodgson and wife v. Ambrose, Doug. 337, was of the same opinion, and also Lord Hardwicke, in Bagshéw and Spencer, 2 Atk. 583. Where technical w;ords are used in a deed, of conveyance, the legal import of such words must govern. But there' is no rule- better established, than that in giving a construction to a will, the intention of the testator must prevail, His' expressed intention constitutes the law, .unless it shall conflict with some. established legal, principle. Under this rule the. nature and extent of the estate devised to Elias Magruder. must depend upon the words .of the will.

In -the first clause of the devise a life-estate is clearly given to him. «I give and bequeath unto my brother, Elias Magruder, during his natural life, 100 acres of land,” &c. The second clause of- the devise is equally explicit. « 'In case the said Elias Magruder .should have heirs lawfully begotten of him in wedlock, I then give and. bequeath the 100 acres of land aforesaid, to him, his heirs and assigns, for ever.” Now the condition of having heirs as above expressed, is clearly a precedent, condition and must happen before the estate vests. • And -if any dpubt could arise from the above sentences whether the testator intended to-vest in. Elias inore than a life-estate, that doubt must be dispeEed by the succeeding sentence, “.but, should he, the said Elias' Magruder, die without ain heir so begotten, I give’, bequeath, devise, and desire that the 100 acres.of land, aforesaid, be sold to the-highest bidder, and-the money-arising from the sale thereof, to be 'equally divided among my six children.”

It would be difficult to convey in' more explicit language, than is done in. the abové - sentences, the intention of the testator. He gives a life-estate; and then, on the happening of the contingency named, he gives an estate to the devisee and his heirs in fee-simple; but, should the contingency not happen, he .directs the land ta be sold and' the proceeds distributed among his-children. No- other conclusion can be arrived at, on this view of the will, than .that Elias Magruder took only a life-estate in the land.- His conveyance, therefore, eould transfer no interest in the land, beyond his own life.

The next question regards the title under-the proceedings before the chancéllor.

These proceedings were by virtue of “ an act of 1785, forhplargirig the power of the High Court of Chancery.” 1 Maxcy’s Laws,, ch. 72, sect. 4, which provides, “ that if any person hath died or shall die, leaving 'real or personal'estate to be-sold-for the paymentr of debts, or other .purposes, and shall not, by will or other instrument-in'writing, appoint a person or persons to sell- or -convey , the same-property, or if the person or persons appointed for'the purpose aforesaid shall neglect- or refuse to execute such' trust, or if- such person or persons, or any of them, shall’die before the execution of ■ such trust, so that the sale cannot be-made for the purposes intended, in every such case the chancellor shall have full powerand authority, upon application or petition from, any person or persons interested in-the sale of such property, to appoint, such trustee o.r trustees for the purpose of selling and conveying such property, and applying'the money arising from the sale -to the purposes intended, as the chancellor shall in his discretion think "proper.”

An objection, is made to these proceedings, in limine, on the ground that only a part of the heifs interested; united in the applicátion to the. chancellor. But this, objection is not'sustainable. The petition was for the benefit of all the heirs, and the statute does not require that all shall unite in the petition; « Any person or persons interested” may apply to the chancellor. Whether applicants- or not, all the heifs equally participated in the results of the proceedings, and this is a sufficient answer, to any technical objection.

• But the main point under this head is, whether'.the sale of the 100 acres now in controversy was of any validity. •

That the proceedings before the chancellor constituted a suit is admitted; ,and also that they are conformably, at least in part, to the mode of procedure in such cases. The chancellor had jurisdiction of the cause, as presented by the petition; and' this being the case, no advantage can be taken of errors, however gross,-when the record is used collaterally. If a want of jurisdiction appear on the face of the record, the judgment or decree will be treated as a nullity. , But where there was jurisdiction, the- record must be received as conclusive of the rights adjudicated. No fact established by the judgment of the courtcan be controverted. In the language of this court, in the. case of Voorhees v. The Bank of the United States, 10 Peters, 450, the record imports absolute .verity. But when a judgment or decree is given .in evidence, its nature and effect can only be ascertained by an examination of the jecord. Let.this test fee applied to the proceedings of the chancery court under consideration.

It is admitted, and the fact appears from the fecord, that at the time these proceedings were instituted, Elias Magruder was living and continued to live for seven years afterwards. And as he had a life estate in the premises in controversy, and the contingency on which the estate was to vest in his heirs, being possible, during his life, the land was not subject to. sale under the will. It could only be sold on the devisee’s failure to have heirs, which could not occur before his decease.

The petition asks an order to sell the remaining part' of the tract called George’s Adventure, a part of it having been devised, containing about 356 acres. The sale of the 100 acres, now in contest, was not asked and indeed could not be, as the tract at that time was not liable to be sold. The decree ordered, «that the real estate in the said will directed to be sold should be sold.” Now this decree could only apply to the 356 acres named in th&petition, for the reason- that the sale of that tract- only was prayed'' for, and it was the only tract, at that time, which the will authorized to be sold. In the language of the. decree, it was the real estate directed by the will to be sold.

To construe the decree as embracing the 100 acres tract, would go beyond the prayer of the petition and the jurisdiction of the court. One of the trustees named in the will was deceased, and the other, being insolvent, • had been removed by the Orphan’s Court. The substitution of a new trustee gave to him no power beyond the special order of the court..- Under the statute it seems not' to have been the practice of the.court to appoint a trustee generally, to carry into effect the •will: but to point out, by a specific decree, what he shall do and the mode of doing it. His duties being limited by the decree, he is made the instrument of the court, having no discretion or power under the will.. Consequently, in his decree the chancellor required the trustee to give security, and directed him what notice should be given, and in what manner the sale should be made. This mode of executing the act was clearly within the discretion of the chancellor, specially given to him in the close of the above section. . The rule was made and ratified by the chancellor. A deed was executed by the trustee to the purchaser, and nothing further was done until in June, 1812, when the trustee made a second report, that in pursuance of the above decree, after giving public notice, “he had sold to Walter Slicer, the remaining part bf the real estate of Zachariah Magruder, deceased, consisting of the 100 acres devised to Elias Magruder.”

Now it is clear that this sale was not made in pursuance of the decree. ' Neither in the petition nor in the decree was the tract of 100 acres named or referred to. This proceeding then, by the trustee, was without authority. It could derive no sanction from the 'decree. From the record, it-would seem that there had been no continuance of the cause for six years, and no step taken in it. The second’ report is then made by the trustee as stated. This report was ratified and confirmed “unless by a given day cause to the contrary should be shown,” of which public notice was given. No cause being shown, there ■ was a final ratification bf the sale on the 22d of February, 1813. A the time of this sale it is admitted that Elias Magruder was deceased, without heirs, in the language of the will, “ lawfully begotten of him in wedlock.” And here a question arises whether the above sale can be treated as a nullity.

That the trustee was not authbrized to sell by the decree has already been showm. It would seem, however, from die form of his report, that he assumed to act only in virtue of the decree.

Does the ratification of the sale bring it within the rule, which applies to a case where the court has jurisdiction, but has committed errors in its proceedings; Had the court jurisdiction of die tract of land in controversy. At the .time the decree was entered, that tract was no more subject to the power of fire court than every other tract in the county. The devisee was in possession, having a life-estate in it subject to become a fee-simple on his having heirs lawfully begotten by him.. He had no notice of the proceeding, and was in no'sense a party to. it. ■ The petition did not pray for the Sale of this land:.. In fact that proceeding can, in no point of view, be considered as authorizing the ■ sale •• by the' trustee. The validity, of the sale then must rest up oil the- fact of -ifs having" been made by the trustee, and sanctioned by the chancellor. ■ There would seem to be nb ground for doubt on this point.

The chancellor is authorized to' proceed in a summary mode, under the statute, for the sale of land, in the predicament.'of the above tract, after' the decease of the devisee, without heirs. But He can only proceed on the application of persons interested. Here was no such ' application for the sale of this land. The sale being without authority,, the ratification of it by -the court must be-c'onsidered as having b.eten. given inadvertently. • If given deliberately and on a full examination-of all the facts,.still if must be regarded as an unauthorized proceeding. There was no case beftre the court — nothing on which its judgment could rest:

No :Court, however great may be its .dignify, can arrogate to itself the power of disposing'of real estate without the forms of law. It must obtain jurisdiction of the thing in a legal mode: A decree without notice, would be treated sis. a nullity. And so must a sale of land be treated, which has been made without an order or decree of the court, though, it may have ratified the sale. The statute under which the proceeding was had requires a decreeat least such has been its uniform construction.

This view being decisive of the title of the lessor of - the plaintiff, it is not necessary to -consider the other questions in the- case. '

The judgment 'of the Circuit Court is affirmed.

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 Mary-' land, 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.


source: Caselaw Access Project

license: Public Domain

text:
    John McCollum Plaintiff in error, v. Jenison Eager.
    In the Circuit Court of the United States for Louisiana, where a party seeks relief which is mainly appropriate to a chancery jurisdiction, chancery practice must.be followed.
    A writ of -error is not the appropriate mode of bringing tip, for review,- a decree in chancery. It should be brought up by an- appeal.
    An appeal will lie only from a final decree; and not from one dissolving'an injunction, where the bill'itself is not dismissed.
    This case-was brought up by a writ óf error from the Circuit Court of'the United States for the eastern district of Louisiana,
    The case was this.
    On the 27th of July, 1838, Charles Bishop executed the follow-^ ing' promissory note:

      Donaldsonville, 21th July, 1838.
    In all the month of May next, 1839,1 promise to pay H.. Williams and'A.'F. Rightor or order, the sum of'five thousand dollars, Value received.
    (Signed) Charles Bishop.
    Which note was-endorsed to Eager, a citizen of Kentucky,-by Williams and Rightor, waiving the necessity of a demand of payment oh the mater and of protest for non-payment and- also of notice to. themselves as the endorsers,- óf the non-payment of the note.
    On the 17th of August, 1838, John Hagan, senior, óf New Orleans, conveyed to Williams and Bishop, six tracts of land for $50)000, payable in one, two, and three years, with interest, the notes for which were dated ón the 1st of August, 1838, and endorsed by Rightor. It Was made a condition of sale that, if any .one of the notes should not be punctually paid, the-whole of the lands should revert to Hagan.
    On the 26th of February, 1839, Bishop sold, out all his interest in the above purchase to Williams, Rightor, and Andrew McCollum.
    On the 3d of August, 1839, the first note given by Williams and Bishop to Hagan, for $16,666 66 cents, was protested for nonpayment.
    On the 18th of November, 1839, Eager brought suit by filing a petition in the Circuit Court of the United States, against Wiliams and Rightor as endorsers upon Bishop’s note.

      On the 7th of January, 1840, judgment was entered in favour-of Eager for the amount of the note, with interest from the 1st of June, 1839. In March, 1840, a fi. fa. was issued, and in April, levied upon one of the tracts of land above mentioned, together with some personal property.
    On the 16th of April, 1840, Hagan filed, in the second District Court of the state of Louisiana, a petition, in the nature of a bill to foreclose a mortgage, reciting that the first note of $16,666. 66 cents,' given for the 'purchase of the six tracts of land, remained unpaid, and praying a sale of the whole of the tracts, to pay that and. the other two .notes of the same amount. A judgment in decree upon this petition was' entered by consent, with a .stay of execution until 1st of January, 1841.
    On the 22d of August, 1840, the execution in favour of Eager, which had been lying over for want of bidders, was finally carried out by a peremptory sale of the property which had been levied upon, on a credit- of twelve months; when John McCollum (the plaintiff in error) became the purchaser for the sum of $5442 41 cents, and gave his bond with five sureties for that amount to Jenison Eager.
    On the 6th of January, 1841, the stay of execution upon Hagan’s judgment or decree having expired, an execution was issued upon ■it, and Hagan repurchased the six tracts of land.
    On the 24th pf July, -1841, John McCollum gave a power, of attorney to B. W. Lawes to act for him in every thing relating to the twelve months’ bond which he had given to Eager.
    On the 23d of August, 1841, execution was issued upon this bond against McCollum' and his sureties; the writ directed the money to be made out of the personal estate, except slaves, but if sufficient personal estate, exclusive of slaves, could not be found in the district, then out of the real estate apd slaves of McCollum and his sureties.
    In September, 1841, Andrew McCollum, claiming to be the owner of an undivided third part-of the property which had been sold, by Bishop to WiUiams, Rightor, and himself, as above stated, filed a petition in the second District Court of Louisiana against John McCollum, averring that John was in possession of the whole of the property, and praying that he might be compelled to deliver up one-third of it and-pay damages for its detention.
    On the 20th of September, 1841, Rightor intervened in the said suit, and claimed that the marshal’s sale to John McCollum might be set" aside for irregularity.
    On 'the 22d of September, 1841, B. W. Lawes, in virtue of the power which had been given to him by John McCollum, filed a petition in the Circuit Court of the United States, in the nature of a bill in equity, stating that McCollum had given his bond for the property purchased at the marshal’s sale; that an execution had been issued upon it; that the sale was null and void; that Hagan had evicted McCollum; that the formalities required by law were not observed by the marshal; that Rightor 'had intervened and sought tq annul the sale; that the consideration of the bond had utterly failed, and praying for an injunction to stop the marshal from proceeding further upon it.
    On the 1st of October,-1841, an injunction was issued in conformity with the prayer of the petition.
    Ón the 14th of February, 1842, the Circuit 'Court, Judge McKinley being absent, decreed that the injunction should be dissolved with 20 per cent, damages', 10 per cent, interest, and $300 amount of fees of counsel employed by the plaintiff. .
    From this decision a writ of error was sued out and the case brought up, in this way, to this court.

      Coxe moved to dismiss the case upon two grounds, viz.:
    1. That the decree was not final, and
    2. That the case was brought up in an improper manner.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a writ of error to the Circuit Court for the eastern district of Louisiana.

Under the mode of proceeding in Louisiana, a petition was filed by the defendant iá error, in the Circuit Court, against Williams and Rightor, on a promissory note given by them for the payment of $5000 with interest, &c. And no ans.wer being made, a judgment was entered, by default, against the defendants. An execution was issued, which was levied on a certain tract of land which, on being offered for sale by the marshal a second time, was purchased by John McCollum the plaintiff in error, on a credit, of twelve months. For the payment of the purchase-money-at the time stated, McCollum gave bond and security.

At the expiration of twelve months, under the law of Louisiana, an execution was issued on the bond, which has the effect of a judgment. A levy was made on certain'slaves, by. the marshal, who returned that-after giving notice of sale, all proceedings were stayed Qn'thé execution by injunction.

The injunction was obtained by the plaintiff in error on petition, representing that the title to the land purchased by him at marshal’s sale, and for which the above bond was given, had failed; and that he had been evicted from the premises. • That certain irregularities had taken place in the sale, &c. • An injunction was prayed for, and that the bond might be decreed to be cancelled.

On the 14th of February, 1842, “ the court ordered, adjudged, and decreed, that the injunction granted in this case be dissolved with 20 per cent, damages, 10 per cent, interest^ and $300 amount of fees of counsel employed to be allowed as special, damage, and for costs of this suit.”

A motion is made to dismiss the writ of error, on the ground that it does not lie in the case.

•' The proceeding on the bond may have been authorized under the Louisiana practice, there being no distinction in the courts of that state betweén a proceeding at law and in chancery'. But the relief sought against the bond is mainly appropriate to a' chancery jurisdiction, where such a jurisdiction is 'established. This being the case, the proceeding at law, though'conformable to Lo’-'siana practice in the state courts, was wholly irregular: In th .• federal courts, the jurisdictions of law and chancery, in Louis'ana and in all the other states, are distinctly maintained.

If this be viewed as a chancery proceeding, a writ of error does not lie, for a decree in chancery can only be removed to this court, from the Circuit Court, by an appeal. But an appeal will only lie from- a final decree; and'the decree in this case was not final, as the bill was not dismissed. The writ of error is dismissed.

ORDER.-

. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for-the eastern, district of Louisiana, and it appearing to -the court that the case is removed here by a writ of error to an interlocutory order or decree in chancery,. It is, therefore, now here ordered and adjudged by this court, that this writ' of error be, and the same is hereby dismissed; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein according to law and justice.


author: Mr. Justice STORY

text:
    Ex parte Barry.
    The original jurisdiction of this court does not extend to the-case of a petition by a private individual, for a habeas corpus to bring up the body of his infant daughter, alleged to be unlawfully detained from him.
   Mr. Justice STORY

This'is a petition filed in this court for a writ of habeas corpus to be awarded to bring up the .body of the infant daughter of the petitioner, alleged to be now unlawfully debarred from him, and in the custody of Mrs. Mary Merctein, the grandmother of the said child, in the district of New York. ■ The petitioner is a subject of the queen of Great,Britain;, and the application in effect seeks the exercise of original'jurisdiction in the matter upon which it is founded. ' No application has been made to-the .Circuit Court of the'United States for the district of New York,' for relief in-the premises, eithter by a writ of habeas corpus or de homine replegiando, or otherwise; and, of course, no case is presented for the exercise of. the appellate jurisdiction of this court by .any review, of- the final decision and awairi. of the Circuit Court' upon any such proceedings. Nor is any ease presented for the exercise'of the appellate jurisdiction of this court upon a -writ of error to th'e- decision of the highest court of law and equity in the state of 'New York, upon the' ground of any question- arising under the 25th section of the Judiciary act of <1789, ch.'20.

The case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court. Now the Constitution of the .United States has not confided any original jurisdiction to this court, except “ in. all cases affecting ambassadors, other public.ministers, and consuls, and those in which a state shall be a party.” The present case falls not within either predicament. It is the case of a private individual who is an alien seeking redress for a supposed wrong done him by another private individual, who is a citizen of New York; It is plain, therefore, that this court has no original jurisdiction to entertain the present petition; and we cannot issue any writ of habeas corpus, except when it is necessary for the exercise of the jurisdiction, original or appellate, given to it by the Constitution or laws of the United States. Without, therefore, entering into the merits of the present application, we are compelled, by our duty, to dismiss the petition, leaving the petitioner to seek redress in such other tribunal of the United States as may be entitled to grant it. If the petitioner has any title to redress in those tribunals, the vacancy in the office of the judge of this court assigned to that circuit and district creates no legal obstruction to the pursuit thereof.


author: But Mr. Justice STORY

text:
    Spalding v. The People of the State of New York, ex rel, Frederick F. Backus.
    An appeal bond given to the people or to the relator is good, and if forfeited, may be sued upon by either.

      Beardsley moved to dismiss the writ of error in this • case, because Spalding had given a bond to The People of the State of New York, or Frederick F. Backus.
   But Mr. Justice STORY

delivered the opinion of the court, and said that the bond was good, and, if forfeited, might be sued upon in the name of the people or of the relator, at the option of the government.


text:
    Glendy Burke, Plaintiff in Error, v. Robert McKay.
    By the general law merchant, no protest is required to be made upon the dishonour of any promissory note ; but it is exclusively confined to foreign- bills - of exchange.
    Neither is it a necessary part of the official duty of a notary, to give notice to the endorser of the dishonour of a promissory note.
    But a state law or general usage may overrule the general law merchant in these respects.
    'Where a protest is necessary, it is not indispensable that it should be made by a person who is in fact a notary.
    Where the endorser has -discharged the maker of a note from liability' by a release and settlement, a notice of non-payment would be of no use to him, and therefore he is not entitled to it.
    This case was brought up by writ of error from the Circuit Court of the United States for the southern district of Mississippi. The suit was brought in the court below by the endorsee against the endorser of the following promissory note:—

      $2800. Clinton, Miss., January 20th, 1837.
    On' the first day of January, eighteen hundred and forty, we, or. either of us, promise to pay Robert Mathews, or order, twenty-eight hundred dollars, for value received. R. E. Stratton,
    Saml. W. Dickson,
    B. Garland.-
    The note was endorsed thus:
    I assign the within note to Robert McKay, and hold myself responsible for the same, waiving notice of demand and .protest if not paid at maturity.
    Robert Mathews.
    ' Clinton, 28th April, 1838.
    The note wás then endorsed by McKay in blank, and passed with two intermediate endorsements, into the hands of Burke, a citizen of Louisiana, Hie plaintiff below, and also plaintiff in error;
    On the trial, the plaintiff read the note ánd the endorsements thereon ;■ he also read, by agreement of parties, a statement in writing of S. Humphreys, who was, absent and sick, for the purpose of proving a demand and notice of non-payment to the endorser, to wit;—
    United States of America, '

      State of Mississippi, Hinds county.

    By this public instrument of protest, be it known that, on this fourth day of January, 1840, at the request of James G.'Paul, teller, the holder of the original note, of which a true copy is here endorsed, I, S. W. Humphreys, J. P., residing in the town of Clinton j Hinds county, Mississippi, qualified according to law, went to the house of Richard E. Stratton and presented the said note, and demanded payment, which was refused; I also went to the house of Samuel W. Dickson, and demanded payment, which was refused; I also went to the office of Burr Garland, in thé-.town of Clinton, and there was no person of whom to make a demand..
    "Whereupon, I, the said S. W. Humphreys, J. P., and ex officio notary public, at the request aforesaid,, do hereby solemnly and publicly protest the said note, as ■ well against the drawer thereof as against the acceptors, endorsers, and all who are or may be concerned, for all exchanges or re-exchanges, costs, charges, damages, and interests, suffered, or to suffer, for non-payment of said note thus solemnly done and protested.

      Given under. my hand aiid seal!, at my office at Clinton,'the day and year above written..
    „ _TT TT T ~ r - i S. W. Humphreys, J. P. [seal.]

      Acting Notary Public.

    ' Notice of protest directed to.R. E.- Stratton, Mississippi.
    Notice of protest directed to Sami. W. Dickson, at Brownsville, Mississippi.
    Notice of protest directed to B. Garland, at Clinton, Mississippi.
    Notice of protest’ directed to - Robt. McKay, at Holmesville, Pike county, ■ Mississippi.
    Notice to Robert Mathews, directed to Carrollton, Carroll county, Mississippi.
    Notice to Tho. fi. Robins, cashier, directed to Vicksburg, Warren county, Mississippi.
    All the .above-named notices were put m-the post-office at Clinton by me, on the 4th .day of January, 1840, before 9 o’clock at night.
    ’ S. W. Humphreys, J. P.
    The plaintiff also read in evidence the following admission of the defendant :•—
    The defendant, Robert McKay, in this case, admits that, at and before the first and fourth of January, 1840, he did reside at Holmes-ville, Pike county, Mississippi, and that the certificate of protest and sendingnotices, &c., made and signed by S. W. Humphreys, and filed in this case, shall be received as the evidence of said Humphreys, (who is sick, and cannot attend court,) and that said Humphreys, ■if present, would swear to all the facts stated in the said certificate.
    Defendant also admits .that, in a settlement with the makers of the note in the declaration mentioned, of and concerning two judgments defendant had’ against them upon two other notes of sain'e amount which fell due 1st and 4th January, 1838 and 1839rthis note was included, and defendant has released said makers from all liability to him on said notes ; but defendant denies that he has ever received of said makers full payment of said noteand that, upon a compromise of all claims and controversies' between them, he released said drawers as aforesaid from any- liability to defendant. Defendant agrees that this statement shall be read and. received upon the trial’ of this case by the court and jury.
    Robert McKay.
    ’ JVou.18,.1842.
    The defendant admitted his residence was at-Holmesville, Pike county, at the maturity of the note; and here plaintiff rested his case,

      The court, instructed the jury that, in order to charge the endorser of a promissory note,-the plaintiff must prove that it was protested', on the day of its maturity, by a notary public, and demand • madé, and notice of non-payment -given by him, That the statement of Humphreys admitted as evidence not proving that fact, they must find for the defendant; whereupon, a verdict for defendant was rendered.
    The plaintiff, by attorney, excepted to the charge of the court before, the jury left the box; which exceptions were signed and sealed, and ordered to be made a part, of the record, which is dont accordingly. ' S. J. Gholson. [seal.]

      J. Henderson, for the plaintiff in error.
    This action was brought in the Circuit Court <5f the United States for Mississippi, by Burke, as endorsee of a promissory note, against' ' McKay, an endorser of the same note;
    Due demand of payment of the makers of the note was made by a justice of the peace, acting ex officio as notary public. The note •being dishonoured, was protested by said justice of the peace, and due notice of both non-payment and protest given to the defendant McKay.
    It is agreed by the patties on the record that all these proceedings are regular, if the justice of the peace, officiating as a notary, might lawfully discharge such duties^
    It is admitted by the defendant, McKay, that he had also previously settled with the makers of the note, and released them from its payment, though he had not then received payment of the money stipulated on settlement.
    ' With this state of the case in proof before the jury, the .court charged:— •
    « That in order to charge the endorser of a promissory note, the plaintiff must prove it was protested on the day of its maturity, by a notary public, and demand made, and notice of non-payment given by him. That the statement of Humphreys, admitted as evidence, not proving that -fact, they (the jury) must find for the defendant.”
    And -which being excepted to, verdict and judgment went according .0 the charge, and the instruction is now complained of as error.
    Three points arise in the case
    1. From the facts of the case, was the defendánt entitled to any lotice ?
    2. Is protest of a promissory note necessary ?-

      3. If protest be necessary, was it legally made in this case by a justice of the peace officiating as notary ?
    The charge of the court'has omitted any notice of the first point, and has, as we contend, decided erroneously on the second and third points.
    We maintain,
    1. That the defendant- in this case is not, under his confession that he had released the drawers of the note from their responsibility, entitled to demand any notice of dishonour of the note in any form. He discharged every interest which entitled him to any notice whatever.
    2. But if protest of notice might be required, then we insist all in this case was legally conformed to such requirement.
    By statutes of- Mississippi, Howard and Hutchins. 430, sect. 24, authorizes justices of the peace to perform duties of the notary public.
    3. But our statutes in this respect make no change of the general law merchant, and protest of a note (contrary to the. judge’s charge) is not necessary. 6 Wheat. Rep. 151, 152; Anth. N. Prius, 1, and note.
   Mr. Justice STORY

delivered the opinion of the court.

This is a writ of error to the Circuit Court of the district of Mississippi. The plaintiff in error brought' an action of assumpsit in that court, against the defendant in error, as endorsee upon a promissory 'note dated at Clinton, Mississippi; January 20, 1837, whereby R. E. Stratton, Samuel W. Dickson, and B. Garland, or either of them, on the first day of January, 1840, promised to pay Robert Mathews or order, $2800'' for value received. 'The note .was endorsed by Mathews .’as follows, “ I assign tire within note to Robert McKay, and hold myself responsible for the same, .-waiving notice of demand and protest, if not paid at maturity'.” The note was afterward endorsed by McKay, (the defendant,) as> it should seem, in blank, and the plaintiff in error in his declaration made title as immediate endorsee to McKay.

At the trial of the cause upon the general issue, the plaintiff read the note and^the endorsement, arm also proved that, at the maturity of the note, due demand of payment was made of the makers, by S. W. Humphreys, a justice of lire peace of Hinds county, Mississippi, styling himself-« acting -notary publicwho, upon the nonpayment, made due protest thereof, (the protest being by consent admitted as evidence of the facts,) and gave due notice thereof to the payee of the note and to all the endorsers. The defendant (McKay) also admitted that, in a settlement with the makers of the note, in some other transactions, the present note was included, and the defendant released the makers from all liability thereon, but he denied that he had ever received of the makers full payment of the said note ; and that, upon a compromise of all claims and controversies between them, he released the makers froin all liability to the defendant; and he agreed that the same statement should be read and received at the trial of the case by the court and the jury. The district judge (who alone-sat in the cause) instructed the jury, that, in order to charge the endorser of a promissory note, the plaintiff must prove that it was protested on the day of its maturity by a notary public, and demand made and notice of non-payment given by him; that the statement of Humphreys, admitted as evidence, not proving that fact, they must find for the defendant. Whereupon the jury returned a verdict for the defendant, and judgment passed accordingly. Á bill of exceptions Was taken by the plaintiff to the instruction of the court at the trial; and the cause now comes before us upon the writ of error to examine the correctness of that instruction.

And we are all of opinion, that the instruction was incorrect, and not maintainable in point of law. In the first place, by the general law merchant no protest is required to be made upon the dishonour of any promissory note; but it is exclusively confined to foreign bills of- exchange. This is so well known that nothing more need be said upon the subject than to cite the case of Young v. Bryan, 6 Wheat. R. 146, where the very point was decided. It is true that it is a very common practice for a notary public to be employed to make demand of payment of promissory notes from the .makers, and also to give notice of the dishonour to the endorsers thereon. But this is a mere matter of convenience and arrangement between the holder and the notary, and is by no means a requisite imposed or recognised by law, as binding upon the holder. Unless, therefore, there be some statute in Mississippi, 'requiring the intervention of a notary in such cases, (as we understand there is not,) or some general usage equally binding, it is clear that the instruction proceeded upon a mistaken ground. In the next place, it is no necessary part of the official duty of a notary (subject to the like exceptions) tp give notice to the endorsers of the dishonour of a promissory note, although certainly it, is a very convenient and useful course in the transaction of such affairs in commercial cities. In the next place, if a protest were necessary, it is equally clear that it is not indispensable in all cases that the same, should, be. actually made by . a person who is m fáct a ftotary. . In many cases, even with regard to foreign' bills of ^exchange, the protest may, in the absence of a notary, be made.by other functionaries, and. even by merchants. But where, as in Mississippi, a justice of the peace is authorized by positive law to perform .the functions and duties of a notary there is no ground to say that his act of protest is not'equally valid with that of a notary. Quoad hoc he acts as a notary. See Howard and Hutchinson’s Statutes of Mississippi, ch. 37, sect. 24, p. 430.

■ In the next place, in the present case, under the circumstances, the endorser (McKay) was not entitled to any notice whatsoever of the dishonour* He had actually discharged the makers from all liability for the payment of the note by his release and settlement with them. Of course the notice could be of- no use or value to him; for he would in no event be .entitled to any recourse over against them; and, therefore, no noticé to -him would have, been necessary, although it fully appears that he had received due notice •of the dishonour.

• For these reasons, we are of opinion that the judgment bought to he reversed and a venire facias de novo awarded.

order. -

This cause cáme on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment .of the said Circuit Court, in this cause he, 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 fados de novo:


text:
    Benjamin J. Knapp, Plaintiff in error, v. Edmund Banks.
    Where the plaintiff in thecourt below claims $2000 or more, and the ruling of. the court is for a less sum, he is entitled to a writ of error.
    But the defendant is not entitled to such writ where the judgment against him is for a loss sum than $2000 at the lime of the rendition thereof.
    This was a case brought up by writ of error from the Circuit Court of the United States for the southern district of New York.
    Banks had recovered a judgment in that court, against Knapp, for $1720.

      Ogden moved to dismiss the case for want of jurisdiction, which was opposed by Benedict upon the ground that adding interest upon the judgment down to the time when the writ of error was brought, would make it exceed $2000; and he cited 3 Peters, 32, to show that the amount in controversy in this court determined the jurisdiction.
   Mr. Justice STORY

delivered the opinion of the court.

We entertain no doubt whatsoever upon this question. The amount in controversy is to be decided by the sum in controversy at the time of the judgment, and not by any subsequent additions thereto, stich as interest. The distinction constantly maintained is this: Where the plaintiff sues for an amount exceeding $2000, and the ad damnum exceeds $2000, if by-reason of any erroneous ruling of the court below, the.plaintiff recovers nothing, or less than $2000, there, the sum claimed by the plaintiff is the sum in controversy for which a writ of error will lie. But if a verdict is given against the defendant for a less sum than' $2000,-'and judgment passes a grbst him accordingly, there it is obvious that there is, on the part of the defendant, nothing in controversy beyond the sum for which the judgment is given; and consequently he is not entitled to any writ of error. We cannot look beyond the time- of the judgment in order to ascertain whether a writ of error lies or not.

ORDER.

Mr. Ogden, of counsel for Ihe defendant’in error, moved the court to dismiss this writ of error for the want of jurisdiction, because the matters or sum in controversy, exclusive- of costs, did not exceed $2000; which was opposed by Mr: Benedict, of counsel for the plaintiff in error, who contended that although the judgment of the Circuit Court -was only for $1720, yet that the interest on that sum added thereto would make it exceed $2000. To which Mr. Ogden rejoined, that the right of. the party to a writ of error, was controlled by the amount at the rendition of the judgment and could not be enlarged by time. On consideration whereof, It . is the opinion of this court that where the plaintiff in the court below claims $2000 or more, and the ruling of the court is for a less sum, that he is entitled to a writ of error: but that the defendant in the court below is not entitled to such writ where the judgment against him is for a less sum than $2000 at the. time of the rendition thereof — that this is the settled practice of this court. "Whereupon it is now here ordered and .adjudged by this court that this writ of error be and the same is hereby dismissed for the want of jurisdiction

February 3d.


text:
    Lucius W. Stockton and Daniel Moore, Plaintiffs in error, v. Harriet Bishop, Defendant.
    An execution, issued in the court below, alter a writ of error has been sued out, a bond given, and a citation issued, all in due time, may be quashed either in the court below or this court — these things operating as a stay of execution.
    In the Circuit Court of the United States for the western district of Pennsylvania, Harriet Bishop, the defendant in error and a citizen of the state of Ohio, obtained a judgment against Stockton and Moore for $6500 damages and costs, on the 7th of December, 1843.
    On the 15th of December, 1843», Stockton and Moore entered into a bond with Hugh Campbell as surety, for the prosecution of - a writ of error to this court, which was approved by the judgé, and, oh the same day, a writ of "error and citation were sued out. -On the 16th of December, 1843,-the citation was returned served on R. Biddle, Esq., attorney of defendant in error. ■
    - On the 11th of January, 1844, the plaintiff below sued out a writ of fieri facia's and placed it in the hands of the marshal, returnable on the'20th of May. '
    Coxe moved to quash the writ of fieri fiadas, as having been irregularly issued.
   Mr. Justice STORY

delivered the opinion of the court.

Upon the facts stated in the application, there is no doubt that the writ of error, bond, and citation, having been given in dué season according to law, operated as a stay of execution, and that b.'supersedeas to the fieri fadas ought to issue from this court, to supersede and quash the same,, as prayed for in the motion. Indeed, the issuing of the execution was wholly irregular, and it might have been quashed by an application to the court below. But it is equally competent for this court to do the same thing in furtherance of the purposes of justice. The motion is, therefore, granted, and a supersedeas will be issued accordingly.

order.

United States of America, ss.:

The President of the United States of America

To the Honourable the Judges of the Circuit Court of the United States for the western district of Pennsylvania, and to the Marshal of the United States for the said district, greeting:

Whereas, lately in the said Circuit Court,-before you, or some of you, in a cause between Harriet Bishop, plaintiff, and Lucius W. Stockton and Daniel Moore, defendants, judgment was rendered by the said Circuit Court on the 7th December, 1843, in favour of the said plaintiff and against the said defendants, for the sum of' $650.0 and costs of suit, and on the 15th December, 1843, the aforesaid defendants, with sufficient security, filed their bond in error, which was approved by the^judge of the District Court, so as to operate as a supersedeas, the defendants having sued out a writ of error in due form and time, and a citation having been regularly taken out, served upon the defendant in error and duly returned, as by the inspection of the transcript of the record of the said Circuit Court, which was brought into the Supreme Court of the United States, by virtue of a writ of error, agreeably to the act of Congress in such case made and provided, fully and at large appears. * And whereas, in the present term of January, in the yea- of our Lord one thousand eight hundred and forty-four, it is made to appear on affidavit to the said Supreme Court of the United States, that, notwithstanding the premises, the aforesaid plaintiff in the said Circuit Court caused a writ of fieri fadas to be issued on the 11th day of January,' 1844, upon the judgment obtained in said cause, and to be placed in the hands of the aforesaid marshal for service and satisfaction thereof: On consideration whereof, it is now here ordered by this court that a writ of supersedeas be, and the same is hereby awarded to be directed to the aforesaid marshal; commanding and enjoining him' and his deputies, to stay eveiy and all proceedings upon the said writ of fieri facias, and that he return, the said execution with the writ of supersedeas to the said Circuit Court, and that the judges of the said Circuit Court do cause the said writ of execution to be quashed, the same having been unjustly, improvidéntly, and erroneously issued out of the Said court, at the instance of the said plaintiff. You, therefore, the marshal of the United States for the western district of Pennsylvania, are hereby commanded that, from every and all proceedings on .the said fieri facias or in any wise molesting the said defendants on the account aforesaid, you entirely surcease, as being superseded, and that you do forthwith return the said fieri facias, together with this supersedeas to the said Circuit Court, as you will answer the contrary at your peril. And you the judges of the said Circuit Court are hereby commanded that such further proceedings be had in the premises, in conformity to the order of this court, and as according to right and justice, and the laws of the United States ought to be had, the said execution notwithstanding.

Witness the Honourable Roger B. Taney, Chief Justice of the said Supreme Court, the 13th day of March, in the year of our Lord one thousand eight hundred and forty-four.

Wm. Thos. Carroll,

Clerk of the Supreme Court of the United States.