author: Paterson, justice,

text:
    STUART v. LAIRD.
    Error from the 5th circuit in the Virginia district.

    A cause may, by act of congress, be transferred from inferior tribunal to another.
    A contemporary and exposition of the constitution, practised and acquiesced under for a period of years, fixes the construction; and the court will not shake or control it.
    An action of covenant was brought in January 1801, in ‘ the court of the United States for the middle circuit in the “ Virginia district,” by John Laird, a citizen of the state of Maryland, for and on behalf of Laird and Robertson of port Glasgow and subjects of the king of Great Britain, against Hugh Stuart, a citizen and inhabitant of the state of Virginia.
    At the rules in February, 1801, there was an office judgment against the defendant for damages, &c. “ which “ damages,” says the record, “ are to be enquired of and " assessed by a jury to be summoned by the marshal, and “ impannelled before the next court of the United States “ for the middle circuit in the Virginia district, which com- “ mences on the 22d day of May next ensuing, and so the “ cause aforesaid stood continued, by virtue of the statute “ in such case made and provided, until the court of the Uni- “ ted States for the fourth circuit in the Virginia district, con- “ tinued by adjournment and holden at the capitol in the “ city of Richmond aforesaid, on Thursday the 17th day “ of December 1801; at which day, to wit, at a court of “ the United States for the fourth circuit in the eastern “ district of Virginia, continued by adjournment, and “ holden at the capitol in the city aforesaid, before the “ honorable the judges of the said court, came as well “ the plaintiff,” &c. and the office judgment being set aside and issue joined upon the plea of covenants performed, there was verdict and judgment for the plaintiffs; upon which, a fieri facias issued reciting, in the usual form, the judgment recovered “ in the court of the United States for “ the fourth circuit in the eastern Virginia district,” and returnable “ before the judges of the said court at Rich- “ mond, in the eastern Virginia district, on the 26th day “ of April next.” “ Witness Philip Barton Key, esq. chief “ judge of the said court.”
    The return on this execution was as follows, viz.
    “ Executed on Maria and child, Paul, Jenny, Selah, “ Kate, and Anna, and a bond taken with Charles L. “ Carter security, for the delivery thereof at the Eagle “ tavern, in the city of Richmond, on the 20th day of “ April, 1802, the condition of which was not compli- “ ed with.

      Ben. Mosley, D. M. for

      Jos. Scott, M. E. V. D.”

    The record then goes on to state, “ that heretofore, “ to wit, at a court of the United States for the fifth circuit, “ continued by adjournment, and held at the capitol, in “ the city of Richmond, in the district of Virginia, before “ the honorable the chief justice of the United States, on “ Thursday, the 2d of December, 1802, came John “ Laird, on behalf of Laird and Robertson, by Daniel “ Call, gent. his attorney, and moved the said court for “ judgment and award of execution against Hugh Stuart “ and Charles L. Carter, upon a bond entered into by “ them for the forthcoming and delivery of certain pro- “ perty therein mentioned to the marshal of the eastern “ Virginia district, on the day and at the place of sale, “ which was taken by virtue of a writ of fieri facias is- “ sued from the court of the United States for the fourth “ circuit in the eastern Virginia district, against the estate “ of the defendant Hugh Stuart, which bond is in the “ words and figures following, to wit,” &c. the condition of which refers to the fieri facias sued out of the court of the United States for the fourth circuit in the eastern Virginia district.

      The defendants appeared and “ showed as causes why “ the said execution should not be awarded,

      “ 1st. That the motion is authorized by no law of the United States and by no part of the common law, and hath been hitherto in similar instances, or such as are nearly similar, used and admitted, and awards of execution, such as that now prayed for, made in the courts of the United States upon the construction of an act of congress approved on the 24th day of September, 1789, by virtue of which awards of execution in such cases have heretofore been made in the said courts, agreeably to an act of the general assembly of Virginia, passed on the 10th day of December, 1793: and the said defendants do aver that the said act of congress doth not make the laws of the several states rules of decision in the courts of the United States in any case whatever, except in trials at common law; and that no decision which can be given on the said motion will be a decision in a trial at common law.
    “ 2dly. That the said act of the general assembly of Virginia is in derogation of the common law, and deprives the citizen of trial by jury, and that the terms in all such acts prescribed should be regularly and strictly observed by all such as would intitle themselves to the benefit thereof, which hath not been done by the plaintiff in the present motion; first, because agreeably to the said act, on forfeiture of such bond, the officer, who hath taken the same, shall return the same to the office of the court from whence the execution issued, the levying whereof gave him authority to receive the same; and that such court may, upon motion of the person to whom it is payable, after the obligor hath failed in the performance of the condition thereof, award an execution thereon; but neither the said act of assembly or congress, nor any other act of assembly or congress, or part of the common law, doth give such power to any other court; and the said defendant avers that it appears on the face of the notice grounding the plaintiff’s motion, that the execution whereon the same was taken, was issued from the office of the court of the United States for the fourth circuit in the eastern Virginia district, where the judgment grounding the same is there said to have been obtained: And 2dly, because that court doth not now exist, and this honorable court is a different court from that court. 3dly. That the act of congress passed on the 29th day of April, 1802, entitled “ An act to amend the judicial system of the United “ States,” in so far as it annihilated the court of the United States for the fourth circuit in the eastern Virginia district, wherein the said judgment was rendered, is unconstitutional and void, and doth not authorize this court to award an execution on the said bond on motion.
    “ All which matters and things the said defendant doth aver as causes why this honorable court ought not to award execution on the said bond on the present motion, and is ready to prove the same as this honorable court shall direct; Wherefore they pray judgment whether the court here will take further cognizance of the said motion.”

    To this plea there was a general demurrer and joinder; and the court below being of opinion that the plea was insufficient, gave judgment for the plaintiff.
    To reverse that judgment the defendant Stuart sued out the present writ of error; and the errors assigned were in substance similar to those alleged in bar of the motion.

      C. Lee, for plaintiff in error.

    The act of assembly of Virginia which gives this summary remedy upon forth coming bonds, allows the motion for judgment to be made only to the same court from which the execution issued.
    In this case the execution issued from the court of the United States for the fourth circuit in the eastern Virginia district composed of judges Key, Taylor, and M‘Gill.

    The motion was made to the court of the United States for the fifth circuit in the Virginia district, holden by the chief justice of the United States.

    This is not the same court from which the execution issued. The motion therefore in this court was not regular, unless it be made so by the acts of congress of March 8th, 1802. ch. 8. and 29th. Ap. 1802, c. 31. The process in this case was summary, and the pleadings, although in this instance they happen to be reduced to writing, are in fact ore tenus. A position will be taken the direct reverse of that contained in the second point of the plea mentioned in the transcript of the record.
    The court of the fifth circuit ought not to have taken cognizance of the motion; because the court of the fourth circuit did exist, and not because it did not exist, as alleged in the plea.
    If the acts of 8th March and 29th April, 1802, are constitutional, then it is admitted there is no error in the judgment; because, in that case, the courts ceased to exist, the judges were constitutionally removed, and the transfer from the one court to the other was legal. But if those acts are unconstitutional, then the court of the fourth circuit still exists, the judges were not removed, and the transfer of jurisdiction did not take place. The legislature did not intend to transfer causes from one existing court to another. If then the courts still exist, the causes, not being intended to be removed from existing courts, were not removed.
    But we contend that those acts were unconstitutional so far as they apply to this cause.
    1st. The first act (March 8, 1802) is unconstitutional in as much as it goes to deprive the courts of all their power and jurisdiction, and to displace judges who have been guilty of no misbehaviour in their offices.
    By the constitution the judges both of the supreme and the inferior courts are to hold their offices during good behaviour. So much has been recently said, and written and published upon this subject, that it is irksome to repeat arguments which are now familiar to every one.
    There is no difference between the tenure of office of a judge of the supreme court and that of a judge of an inferior court. The reason of that tenure, to wit, the independence of the judge, is the same in both cases; indeed the reason applies more strongly to the case of the inferior judges, because to them are exclusively assigned, cases of life and death.

      It is admitted that congress have the power to modify, increase or diminish the power of the courts and the judges. But that is a power totally different from the power to destroy the courts and to deprive them of all power and jurisdiction. The one is permitted by the constitution, the other is restrained by the regard which the constitution pays to the independence of the judges. They may modify the courts, but they cannot destroy them, if thereby they deprive a judge of his office. This provision of the constitution was intended to place the judges not only beyond the reach of executive power, of which the people are always jealous, but also to shield them from the attack of that party spirit which always predominates in popular assemblies. That this was the principle intended to be guarded by the constitution is evident from the cotemporaneous exposition of that instrument, published under the title of The Federalist, and written, as we all know, by men high in the esteem of their country. Federalist, vol. 2. No. 78.

    Mr. Lee also cited and read the speeches of Mr. Madison in the convention of Virginia, (Debates, vol. 1. p. 112.) of Mr. Nicholas, (vol. 1. p. 32. and vol. 2. p. 152.) and of Mr. Marshall, (in p. 125.)
    The words during good behaviour can not mean during the will of congress. The people have a right to the services of those judges who have been constitutionally appointed, and who have been unconstitutionally removed from office. It is the right of the people that their judges should be independent; that they should not stand in dread of any man who, as Mr. Henry said in the Virginia convention, has the congress at his heels.

      It is admitted that the powers of courts and judges may be altered and modified, but can not be totally withdrawn. By the repealing law the powers of both are entirely taken away.
    But the laws are also unconstitutional, because they impose new duties upon the judges of the supreme court, and thereby infringe their independence; and because they are a legislative instead of an executive appointment of judges to certain courts. By the constitution all civil officers of the United States, including judges, are to be nominated and appointed by the president, by and with the advice and consent of the senate, and are to be commissioned by the president. The act of 29th April, 1802, appoints the “ present chief justice of the supreme court,” a judge of the court thereby established. He might as well have been appointed a judge of the circuit court of the district of Columbia, or of the Mississippi territory. Besides, as judge of the supreme court, he could not exercise the duties or jurisdiction assigned to the court of the fifth circuit, because, by the constitution of the United States, the supreme court has only appellate jurisdiction; except in the two cases where a state or a foreign minister shall be a party. The jurisdiction of the supreme court, therefore, being appellate only, no judge of that court, as such, is authorized to hold a court of original jurisdiction. No act of congress can extend the original jurisdiction of the supreme court beyond the bounds limited by the constitution.
    A party in this court has a right to have his cause tried by six judges. He has a right to an unbiassed court, whether the whole six sit or not. A judge, having tried the cause in the court below, and given judgment, must be in some measure committed; he feels an anxiety that his judgment should be affirmed. The case of Clarke and Nightengale, 3 Dal. will illustrate this principle. The suit was first tried before chief justice Ellsworth, whose opinion upon the merits was in favour of the plaintiff. A writ of error was brought and the judgment reversed for error in pleading, and the cause remanded to be again tried. Judge Cushing held the court on the second trial, and his opinion also was in favour of the plaintiff upon the merits. A second writ of error was brought and tried in the supreme court before chief justice Ellsworth, judges Cushing, Patterson, Washington, and Chase, and the judgment was reversed by the three last mentioned judges who made a majority of the court.
    A degree of respect is certainly due to precedents and past practice. If it be said that the practice from the year 1789 to 1801 is against us; we answer that the practice was wrong, that it crept in unawares, without consideration and without opposition; congress at last saw the error and in 1801 they corrected it, and placed the judicial system on that ground upon which it ought always to have flood. By the act of February 13, 1801, the precedent was broken, so that now precedents are both ways. If there are twelve years practice against us, there is one year for us. There has never been a judicial decision upon the subject. The time has now come when the true construction ought to be settled.
    If the construction is as we contend, then the court below had no jurisdiction. The power of congress to transfer causes from one court to another is admitted; but if the acts of March and April, 1802, are totally unconstitutional, they are void; the causes have not been transferred, and the court of the fourth circuit still exists, with all its powers and jurisdiction.

      Gantt, contra.
    This suit was originally instituted in the circuit court which existed under the law of 1789, and was transferred by the act of February 13th, 1801, to the new circuit court by that act established. It was afterwards, by the act of 1802, re-transferred to the circuit court under the act of 1789, so that if the tranfer by the act of 1801 was constitutional, the re-transfer by the act of 1802 must be equally constitutional.
    No error is relied on but the want of jurisdiction.
    It is admitted that congress have power to transfer the jurisdiction of causes from one inferior court to another; and therefore the question whether they have the power to deprive a judge of his office, does not belong to this case. It has nothing at all to do with it. But admitting for the sake of argument that congress have not the latter power, yet an act may be constitutional in part, and unconstitutional in part.
    Congress have an express power by the constitution to constitute, and, from time to time, to ordain and establish tribunals inferior to the supreme court The tenure of office may be a restraint in part, to the exercise of this power, but can not take away altogether the right to alter and modify existing courts.
    There are not more instances of independent decisions by the judges in England, since they have become independent of the crown, than before; for before that time, we find that judges have been sent to the tower for the independence of their opinions.
    The provision of the constitution respecting tenure by good behaviour was not intended to protect the judge; but for the benefit of the people, that judges might, by the permanence of their offices, be always men of experience and learning. It is admitted by Mr. Lee, that if any power remained in the circuit court of the fourth circuit, the act was constitutional. But even if the whole powers were taken away, yet new powers and new duties might have been given. It does not follow that because the court is abolished, the office of the judge is taken away. And if the act of 1802 is unconstitutional, because it abolishes the circuit courts then existing, the act of 1801 is equally so by abolishing the old circuit courts.
    But, as was before observed, there is no necessity or wish to go into this argument; it is not pertinent to the present cause; for the only question here is whether congress had power to transfer the cause from the fourth to the fifth circuit court, and not whether the fourth circuit court or its judges are still in existence.
    As to the objection that the law of 1789 is unconstitutional, in as much as it gives circuit powers, or original jurisdiction, to judges of the supreme court; it is most probable that the members of the first congress, many of them having been members of the convention which formed the constitution, best knew its meaning and true construction. But if they were mistaken, yet the acquiescence of the judges and of the people under that construction, has given it a sanction which ought not now to be questioned.
    Lee, in reply.

    The acts of 1802 and 1801 were not alike in abolishing the circuit courts. The former, in abolishing the then existing courts, did not turn the judges out of office, or in any degree affect their independence; but the act of 1802 strikes off sixteen judges at a stroke, drives them from their offices, and assigns their duties to others.
    An error was committed in 1789. That act was unconstitutional, but the act of 1801 restored the system to its constitutional limits. We now contend for the pure construction of the constitution, and hope it will be established, notwithstanding the precedent to the contrary.
    March 2d.

       To show that such writings are to be regarded in forming the true construction of the constitution, he read from a newspaper what was said to be an answer from the president of the United States to an address from sundry inhabitants of Providence, in which the president is supposed to have said, “ The constitution on which our union rests, shall be “ administered by me according to the safe and honest meaning contem- “ plated by the plain understanding of the people of the United States, " at the time of its adoption; a meaning to be found in the explanations " of those who advocated, not of those who opposed it; and who opposed " it merely left the constructions should be applied which they denounced “ as possible. These explanations are preserved in the publications of the " time, and are too recent in the memories of most men to admit of “ question.”

   The chief justice, having tried the cause in the court below, declined giving an opinion.

Paterson, justice,

(judge Cushing being absent on account of ill health,) delivered the opinion of the court.

On an action instituted by John Laird against Hugh Stuart, a judgment was entered in a court for the fourth circuit in the eastern district of Virginia, in December term 1801. On this judgment, an execution was issued, returnable to April term 1802, in the same court. In the term of December 1802, John Laird obtained judgment at a court for the fifth circuit in the Virginia district, against Hugh Stuart and Charles L. Carter, upon their bond for the forthcoming and delivery of certain property therein mentioned, which had been levied upon by virtue of the above execution against the said Hugh Stuart.

Two reasons have been assigned by counsel for reversing the judgment on the forthcoming bond. 1. That as the bond was given for the delivery of property levied on by virtue of an execution issuing out of, and returnable to a court for the fourth circuit, no other court could legally proceed upon the said bond. This is true, if there be no statutable provision to direct and authorize such proceeding. Congress have constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the constitution to prohibit or restrain the exercise of legislative power.

The present is a case of this kind. It is nothing more than the removal of the suit brought by Stuart against Laird from the court of the fourth circuit to the court of the fifth circuit, which is authorized to proceed upon and carry it into full effect. This is apparent from the ninth section of the act entitled, “ an act to amend the judicial system of the United States,” passed the 29th of April, 1802. The forthcoming bond is an appendage to the cause, or rather a component part of the proceedings.

2d. Another reason for reversal is, that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistable answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.

Judgment affirmed.


source: Caselaw Access Project

author: The Chief Justice

license: Public Domain

text:
    THOMAS HAMILTON v. JAMES RUSSELL.
    Error from the circuit court of the district of Columbia sitting at Alexandria.

      An absolute bill of sale of goods, is fraudulent as to creditors, unless possession accompanies and follows the deed. The want of possession is not merely evidence of fraud, but is a circumstance per se, which makes the transaction fraudulent in point of law. The court are not bound to give an opinion on an abstract point of law, unless it be so stated as to shew its connexion with the cause.
    James Russel, the defendant,
    having obtained a judgment against Robert Hamilton, brother of the defendant, ordered the marshall to levy the fieri facias upon sundry goods and chattels in the possession of Robert, the debtor; which was done accordingly; whereupon the present plaintiff, Thomas Hamilton, brought an action of trespass against Russel, claiming the goods by virtue of an absolute bill of sale from his brother Robert, dated the 4th of January 1800, and acknowledged and recorded in the circuit court of the district of Columbia for the county of Alexandria, on the 14th of April 1801. Notwithstanding which bill of sale, Robert, the vendor, continued in possession, and exercised acts of ownership over the property. There was a general verdict in the court below, and judgment for the defendant, upon the general issue.
    The transcript of the record contained two bills of exceptions.
    The first stated that the defendant “ prayed the court “ to instruct the jury, that if they should be of opinion “ from the evidence that the plaintiff, who claims the “ slave George, in the declaration mentioned, under an “ absolute bill of sale, for a valuable consideration,” (which bill of sale, recorded before the issuing of the fieri facias upon which the property was seized, is set forth in the bill of exceptions,) “ permitted the vendor, Robert Ham- “ ilton, to continue in possession of the slave and to exer- “ cise acts of ownership over the same, he the said plain- “ tiff has not a good title to the said slave against the exe- “ cution of the defendant, who was a bona fide creditor of “ Robert Hamilton;” which execution the defendant directed to be served “ on the said slave. And the court " so instructed the jury,” to which the plaintiff excepted.
    The second bill of exceptions stated that the plaintiff prayed the court to instruct the jury, “ that a plaintiff in “ trespass, whose property is loaned to a friend, and is in “ that friend’s possession at the time it is seized by a “ sheriff in virtue of an execution against the person so “ in possession, can sustain an action of trespass for a “ seizure upon such possession;” but the court being divided in opinion did not give the instruction as prayed.

      Swann, for plaintiff in error,
    contended that,
    1st. The bill of sale being acknowledged and recorded according to the act of assembly of Virginia respecting frauds and perjuries, (revised code, p. 18,) is valid, and not fraudulent as to creditors.
    That act of assembly contains provisions similar to those in the English statutes of 29 Car. 2, c. 3, § 4. 13 Eliz. c. 5, § 2, and 27 Eliz. c. 4, § 2, and has moreover a clause in the following words, viz.
    “ If a conveyance be of goods and chattels, and be “ not on consideration deemed valuable in law, it shall be “ taken to be fraudulent within this act, unless the same “ be by will duly proved and recorded, or by deed in “ writing acknowledged and proved (if the same deed in- “ clude lands also,) in such manner as conveyances of “ land are by law directed to be acknowledged or proved, “ or if it be of goods and chattels only, then acknow- “ ledged, or proved by two witnesses in the general court, “ or court of the county, wherein one of the parties lives, “ within eight months after the execution thereof, or un- “ less possession shall really and bona fide remain with the “ donee.”

      “ This act shall not extend to any estate or interest in “ any lands, goods or chattels, or any rents, common or “ profit, out of the same, which shall be upon good con- “ sideration, and bonâ fide, lawfully conveyed or assured “ to any person or persons, bodies politic or corporate.” Under this act, he contended the deed would be good against creditors, notwithstanding that the possession did not accompany the deed. And although the deed was not acknowledged within eight months after its execution, yet being acknowledged and recorded before the fieri facias issued upon which the goods were seized, it was good against that execution; and for this he cited the case of Eppes v. Randolph, 2 Call’s reports.

    2d. The court ought to have instructed the jury, as prayed in the second bill of exceptions.
    The law is well established that he who has the general property of goods may maintain trespass against him who tortiously takes them out of the possession of the owner’s bailee. 5 Bac. ab. Gwillim’s Ed. 164.
    Simms, for defendant in error.
    As to the first bill of exceptions. This deed is clearly fraudulent as to creditors. In the case of Lavender v. Blackstone, 2 Levinz 147, lord Hale said that “ every con- “ veyance shall be esteemed prima facie fraudulent against a purchaser.” And in Edwards and Harben, 2 Term rep. 594, it is said by Buller, justice, to have been the unanimous opinion of all the judges in England, “ that unless “ possession accompanies and follows the deed, it is fraudu- “ lent and void.” If the possession be inconsistent with the deed, it is clear and conclusive evidence of fraud, Haselinton v. Gill, cited in Jarman v. Woolloton, 3 Term rep. 620. Cadogan v. Kennet, Cowp. 434.
    The act of assembly of Virginia has similar provisions with the statutes of 13th and 27th Eliz. and nearly in the same words. Those provisions however, were nothing more than a declaration of the principles of the common law.
    But this act of assembly, by making deeds absolutely void which are not for a valuable consideration, unless acknowledged, cannot be construed to make good, as against creditors, a deed purporting to be for a valuable consideration. The act makes the deeds therein mentioned, which are not for valuable consideration, absolutely void even between the parties themselves; and it cannot be pretended that the acknowledgment according to that act would set up such a deed against bona fide creditors. The act was intended to suppress, and not promote or conceal fraud. If such a construction could be put upon the act as is contended for, it would make valid deeds which would before have been void as being fraudulent against creditors. But the act takes no notice at all of such a deed as this, except in the second section of the law, where deeds made with the intent to defraud creditors are expressly declared to be void. So anxious is the act to suppress fraud that in the case of a loan, if the lender does not demand the property lent in five years, and follow up that demand with a prosecution at law to recover possession of his goods, the possession becomes conclusive evidence of property.
    2d. As to the second bill of exceptions, the court did right in not giving the instruction as prayed.
    Possession is necessary to support an action of trespass. Bul. N. P. 79. This ought to have been an action on the case and not trespass. 1 Strange, 635, Reynolds v. Clarke. 4 Term rep. 489, Ward v. Macauley.

      C. Lee, on the same side.
    The case of Ward and Macauley has over-ruled all the cases cited from Bacon’s abridgment, and has been recognised in the case of Gordon v. Harper, 7 Term rep. 9, where the doctrine has been carried even farther, and held that neither trespass nor trover would lie unless the possession, or right of possession, was in the plaintiff. In that case the goods of the landlord had been leased to the tenant, and during the lease were taken in execution for the debt of a third person. The court held that during the lease the landlord had neither the possession nor the right of possession, and therefore he could maintain neither trespass nor trover. Now in the case made by the second bill of exceptions, it is not stated whether the loan was for a time certain, or at the will of the lender.
    If the loan was for a time certain, there is no difference between that case and a lease for a time certain. In neither case is the possession, or the right of possession in the plaintiff. The bailee by loan for a time certain, has an equal right to the possession, during that time, with a bailee for hire; and either may maintain trespass against him who violates that possession, whether it be a stranger or the owner.

      Chase, justice.

    There is here no exception applicable to this case. The bill of exceptions states only an abstract question. It is not whether the plaintiff in this case can maintain an action of trespass, but whether any plaintiff can maintain trespass for property loaned to a friend.

      Swann, in reply,
    Relied on the act of assembly of Virginia. The English cases do not apply; for in England they have no such statute authorizing the recording of deeds of personal property; nor any substitute for the actual delivery of possession of goods in any case whatever.
    Even a mortgage of personal property is there deemed fraudulent as to creditors unless possession accompanies the deed; and the reason given, in all the books, is, that it gives a false credit to the mortgager, enables him to impose upon the world, and gives him a power to deceive and defraud those who deal with him. 1 Wilson 260, Ryall v. Rolle. But when such a deed is publicly made and exposed to view upon the public records, as this was, such reason must fail; and with the reason, the law must fail also.
    As to the second bill of exceptions,
    There is certainly a difference between a loan and a lease. In a loan the lender does not part with the right of possession, nor, in law, does he part with the a actual possession; for the bailee’s possession, is the possession of the lender, who has a right to resume the thing into his own hands at any moment. There is no adverse possession, nor adverse claim, as there is in the case of a lease.
    Fraud or no fraud, is a point to be decided by the jury and not by the court. It is a question of fact; and the court have instructed the jury as if it were a matter of law. The possession of the vendor is not in itself a fraud, but only a circumstance from which, connected with others, the jury may presume the fact of a fraudulent intent.
    February 28th.
   The Chief Justice

delivered the opinion of the court.

On the 4th January, 1800, Robert Hamilton made to Thomas Hamilton an absolute bill of sale for a slave in the bill mentioned, which on the 14th of April, 1801, was acknowledged and recorded in the court of the county in which he resided. The slave continued in possession of the vendor; and some short time after the bill of sale was recorded, an execution on a judgment obtained against the vendor was levied on the slave, and on some other personal property also in possession of the vendor. In July, 1801, Thomas Hamilton, the vendee, brought trespass against the defendant Russell, by whose execution, and by whose direction, the property had been seized; and at the trial, the counsel for the defendant moved the court to instruct the jury, that if the slave, George, remained in the possession of the vendor, by the consent and permission of the vendee; and if by such consent and permission the vendor continued to exercise acts of ownership over him, the vendee under such circumstances could not protect such have from the execution of the defendant.

The court gave the instruction required, to which a bill of exceptions was taken.

The counsel for the plaintiff then moved the court to instruct the jury that a plaintiff in trespass, whose property is loaned to a friend, and is in that friend’s possession at the time it is seized by a sheriff in virtue of an execution against the person so in possession, can sustain an action of trespass for a seizure upon such possession.

The court, being divided, refused to give the instruction required, and the jury found a verdict for the defendant. Judgment was accordingly rendered for the defendant, to which a writ of error has been sued out, and the question is, whether the court below has erred in the instructions given or refused.

In the opinion to which the first bill of exceptions was taken, it is contended on two grounds that the circuit court has erred.

1st. Because this sale is, under the act of the Virginia assembly against fraudulent sales, protected by being recorded.

2dly. That if it be not protected by that act, still it is only evidence of fraud, and not in itself a fraud.

On examining the act of assembly alluded to, the court is of opinion that it does not comprehend absolute bills of sale among those where the title may be separated from the possession, and yet the conveyance be a valid one, if recorded within eight months. On this point one judge doubted, but he is of opinion that this bill of sale was not recorded within the time required by the act, and that the decision in the case of Eppes v. Randolph, which was made by the court of appeals of Virginia, on a different act of assembly, would not apply to this act.

On the second point there was more difficulty. The act of assembly, which governs the case, appears, as far as respects fraudulent conveyances, to be intended to be co-extensive with the acts of the 13th and 27th of Eliz. and those acts are considered as only declaratory of the principles of the common law. The decisions of the English judges therefore apply to this case.

In some cases a sale of a chattel, unaccompanied by the delivery of possession, appears to have been considered as an evidence, or a badge, of fraud, to be submitted to the jury, under the direction of the court, and not as constituting in itself, in point of law, an actual fraud which rendered the transaction as to creditors entirely void. Modern decisions have taken this question up upon principle, and have determined, that an unconditional sale, where the possession does not " accompany and follow the deed,” is, with respect to creditors, on the found construction of the statute of Elizabeth, a fraud, and should be so determined by the court. The distinction they have taken is between a deed purporting on the face of it to be absolute, so that the separation of the possession from the title is incompatible with the deed itself; and a deed made upon condition which does not entitle the vendor to the immediate possession. The case of Edwards vs. Harbin, exr. of Tempest Mercer, 2 Term rep. 587, turns on this distinction, and is a very strong case.

William Tempest Mercer, on the 27th of March, 1786, offered to the defendant Harbin, a bill of sale of sundry chattels as a security for a debt due by Mercer to Harbin. This Harbin refused to take, unless he should be permitted, at the expiration of fourteen days, if the debt should remain unpaid, to take possession of the goods and sell them, in satisfaction of the debt. The surplus money to be returned to Mercer. To this Mercer agreed, and a bill of sale, purporting on the face of it to be absolute, was executed, and a corkscrew delivered in the name of the whole. Mercer died within the fourteen days, and immediately after their expiration Harbin took possession of the goods specified in the bill of sale and sold them. A suit was then brought against him by Edwards, who was also a creditor of Mercer, charging Harbin as executor in his own wrong, and the question was, whether this bill of sale was fraudulent and void, as being on its face absolute, and being unaccompanied by the delivery of possession. It was determined to be fraudulent; and in that case it is said that all the judges of England had been consulted on a motion for a new trial in the case of Bamford v. Baron, and were unanimously of opinion that “ unless possession accompanies and follows the deed, it is fraudulent and void;” that is, that unless the possession remain with the person, shown by the deed to be entitled to it, such deed is void as to creditors within the statutes. This principle is said by judge Buller, to have been long settled and never to have been seriously questioned. He states it to have been established by lord Coke, in 2d Bulstrode, so far as to declare that an absolute conveyance or gift of a lease for years, unattended with possession, was fraudulent. “ But if the deed or conveyance be conditi- “ onal, there the vendor’s continuing in possession does “ not avoid it, because by the terms of the conveyance “ the vendee is not to have the possession till he has per- “ formed the condition.” “ And that case, continues, “ judge Buller, makes the distinction between deeds or “ bills of sale which are to take place immediately, and “ those which are to take place at some future time. For “ in the latter case, the possession continuing with the “ vendor till such future time, or till that condition be “ performed, is consistent with the deed, and such pos- “ session comes within the rule as accompanying and fol- lowing the deed. That case has been universally fol- “ lowed by all the cases since.” “ This,” continues the judge, “has been argued by the defendant’s counsel as “ being a case in which the want of possession is only evi- “ dence of fraud, and that it was not such a circumstance “ per se, as makes the transaction fraudulent in point of “ law; that is the point which we have considered, and “ we are all of opinion, that if there is nothing but the “ absolute conveyance, without the possession, that in point “ of law is fraudulent.”

This court is of the same opinion. We think that the intent of the statute is best promoted by that construction; and that fraudulent conveyances, which are made to secure to a debtor a beneficial interest while his property is protected from creditors, will be most effectually prevented by declaring that an absolute bill of sale is itself a fraud, unless possession “ accompanies and follows the deed.” This construction too comports with the words of the act. Such a deed must be considered as made with an intent “ to delay, hinder, or defraud creditors.”

On the second bill of exceptions the court did right in refusing to give the instruction required. The question propounded seems to have been an abstract question not belonging to the cause.

Judgment affirmed with costs.


author: The attorney general

text:
    UNITED STATES v. R. T. HOOE AND OTHERS.
    Under the judiciary act of 1789, in chancery cases, a statement of facts must accompany the transcript. This provision was revived by the repeal of the act of February 1801.
    This was a writ of error to a decree of the circuit court of the district of Columbia, sitting as a court of Chancery.
    The case was, that colonel Fitzgerald in the year 1794 was appointed collector of the customs for the port of Alexandria, and gave bond to the United States in the penalty of 10,000 dollars, with R. T. Hooe as his surety, for the faithful performance of the duties of the office. In consequence of misapplication of large sums of money by the chief clerk, who was entrusted with almost the whole management of the business, col. Fitzgerald became deficient in his accounts with the United States to the amount of 57,000 dollars. After this fact was discovered he executed a deed of trust of part of his real estate to trustees, to be sold to indemnify Hooe from the demands of the United States against him, as security of Fitzgerald, and also to secure him against sundry notes which he had indorsed for him at the bank of Alexandria, as well as to enable him to take up further sums at the bank, as his exigencies might require. After the death of col. Fitzgerald, the trustees advertised the property for sale, and the United States obtained an injunction to stay the sale, alleging that by the acts of congress, they were entitled to a prior lien upon the estate of their debtor; and that the deed, as to them, was fraudulent. In the court below, the claim of the United States was rested altogether upon the prior lien created by the act of congress; and the court being of opinion that the act did not create a lien on the real estate, and that there did not appear to be any fraud in the transaction, dissolved the injunction, with costs, and ordered 10,000 dollars, part of the proceeds of the sale, to be paid into the treasury of the United States in satisfaction of the bond, in which Hooe was the surety, and the residue, after paying the notes due at bank, to be paid into the treasury of the United States, in part satisfaction of the balance due from the estate of Fitzgerald. It having been proved to the satisfaction of the court, that the money, arising from the notes discounted at the bank, had been before paid by Fitzgerald to the United States.
    To reverse this decree, the present writ of error was sued out by the attorney for the United States.
    The decree of the court below did not state the facts upon which the decree was founded; and although the record contained the bill, answers, exhibits and all the evidence which was before the court below, yet no statement of facts, according to the provision of the judiciary act of 1789, ch. 20. §. 19, was made by the parties or by the court.
   The attorney general

opened the cause on the part of the United States, and was going on to shew that the deed was fraudulent, as to creditors, upon general principles of law, (a ground not taken in the court below) when he was stopped by an enquiry from the court, whether there was any provision in the act concerning the district of Columbia, by which the case was taken out of the operation of the nineteenth section of the judiciary act of 1789, which required a statement of the facts to accompany the record. Upon recurring to the act of congress, 27th February 1801, concerning the district of Columbia, ch. 86. §. 8, it was found that writs of error were to “ be prosecuted in the same manner, under the same regu- “ lations, and the same proceedings shall be had therein, “ as is, or shall be provided in the case of writs of error on “ judgments, or appeals upon orders or decrees rendered “ in the circuit court of the United States.” Upon which the court said, that the decisions on the act of 1789, §. 19, had been, that unless a statement of facts appeared upon the record, they could not say there was error. 3. Dallas, 337, Jennings v. Brig Perseverance. It is true that the act of February 13. 1801. chap. 75. §. 33, remedied the evil, but that act was repealed in 1802, so that the law now stands as it did before the act of 1801. And the act concerning the district of Columbia, by saying that writs of error shall be prosecuted in the same manner as is, or shall be, provided, &c. places this case under the law of 1789. Whatever might be the present opinion of the court if this were the first time of being called upon to give a construction to that clause of the act, yet the question has been solemnly settled. One legislature has taken cognizance of the construction given by the court, and has provided for the case, but another legislature has repealed that provision and thereby given a subsequent legislative construction, or at least shewn such a legislative acquiescence under the construction which this court formerly gave to the act, as is now conclusive.

At the request of the attorney general, the writ of error was dismissed.

       Mr. Lincoln.

       Congress being in session at this time, an act was introduced and passed, containing a clause similar to the 33d section of the act of 13th February, 1801, respecting writs of error and appeals in cases of equity and maritime jurisdiction, &c. Laws of U. S. vol. 6. p, 315, c. 93, 3d March, 1803.


author: The Chief Justice,

text:
    HEPBURN AND DUNDAS v. COLIN AULD.
    This was an action of debt brought by Hepburn and Dundas against Colin Auld in the circuit court of the district of Columbia, for the penalty of an agreement dated 27th September 1799, between the plaintiffs, merchants of Alexandria, and the defendant, as agent for John Dunlop and co. merchants in Glasgow.
    The agreement recites that whereas the plaintiffs have had extensive dealings with Dunlop and co. in the course of which the former appear to have fallen in debt to the latter, by the accounts by them exhibited, some articles of which accounts having been objected to by the plaintiffs, they had agreed with the said agent to submit all matters in dispute to arbitration. And whereas the plaintiffs, by an article of agreement between them and a certain William Graham, dated 12th March 1796, did covenant with him, (for the consideration of 18000 dollars to be by him paid to them at certain times in the said article expressed) to convey to him the said Graham his heirs and assigns 6000 acres of land on the Ohio; but the said Graham failing to make the first payment upon the day stipulated, the plaintiffs considered the said contract as thereby annulled, and in consequence thereof brought an ejectment to recover possession of the land, which they had permitted Graham to occupy, which ejectment had been abated by his death, and another ejectment had been or was about to be commenced.
    The indenture then witnesseth, that each party covenanted to furnish their accounts to the arbitrators so as to enable them to make their award by the 1st day of January then next, being the time stipulated by the arbitration bonds. That Auld covenanted that he, or the agent of Dunlop and co. would, on the 2d day of January then next, accept and take, of the plaintiffs, the amount which should be awarded to Dunlop and co. in bills of exchange, of a certain description, or in any money which might by law be a legal tender; and on such payment being made in either way, give the plaintiffs a full receipt and discharge of all claims and demands of Dunlop and co. against them. That the plaintiffs covenanted, that in case they did not, on the 2d of January then next, pay to the defendant, or the then agent of Dunlop and co. the amount of the award, in bills or money, they would, on that day, assign and transfer to the defendant, or the then agent of Dunlop and co, in the fullest manner, the aforesaid contract entered into by them with Graham for the sale of the land, and all and every interest, right and claim, of whatever kind, of the plaintiffs, arising out of and from the said contract; with full power to proceed and act thereupon and therein as the defendant or the then agent of Dunlop and co. should think proper; and that they would for that purpose give him a full and ample power of attorney irrevocable to pursue in their names, if necessary, all legal ways and means, either to recover the possession of the land, or to enforce payment of the 18000 dollars and interest, whichever of the measures he might be inclined to pursue; and that in case they should so assign the said contract, they would not thereafter in any manner interfere with the measures he might chuse to pursue, either for the recovery of the lands, or to enforce the payment of the purchase money. And that whenever the ejectment should be judicially determined, or settled by compromise, they would convey the lands to the person who by such determination or compromise should be acknowledged to be entitled to them. And that in case the said purchase money, which, with interest to the said 2d day of January, would amount to 21,112 dollars, should not prove sufficient to satisfy the award, they would on that day pay the balance to the defendant or the then agent of Dunlop and co.
    And the defendant covenanted that in case it should not be convenient for the plaintiffs to pay the amount of the award in bills, or money, on the 2d day of January, he would accept and take an assignment of the said Graham’s contract, at 21,112 dollars, towards the discharge of the said award; and that in case it should exceed the amount of the award, he would, at the time of making the said assignment, pay them the excess. For the faithful performance of these articles, the parties bound themselves to each other in the penal sum of 45,000 dollars. The sum of 21,112 dollars exceeded the amount of the award, by the sum of £ 494. 6. 7. Virginia currency. For the non-payment of this excess the present action was brought by the plaintiffs, after having tendered an assignment of Graham’s contract and a power of attorney, which was refused by the defendant. There were four issues in fact, but to the 5th plea there was a general demurrer and joinder. Judgment below being in favor of the defendant upon this demurrer, the issues in fact were not tried, and the plaintiffs sued out the present writ of error.
    The fifth plea was as follows, “ and the said defendant “ by virtue of the act, &c. and by leave of the court, for “ further plea, protecting that the said deed of assignment “ of the contract aforesaid, with the said William Graham, “ so as aforesaid, pretended to have been executed, sealed “ and tendered by the plaintiffs on the 2d day of January “ in the year 1800, was not a good, lawful and sufficient “ assignment thereof, according to the true intent and “ meaning of the said articles of agreement between the " plaintiffs and defendant, he, the defendant, faith, that “ the said deed of assignment was not tendered to him un- “ conditionally, but upon the condition, that the said John “ Dunlop and company should first sign, seal and deliver, “ by the said Colin Auld their attorney, on the same day, “ unto the plaintiffs, a release and acquittance of all the “ claims and demands of the said John Dunlop and com- “ pany, against the said plaintiffs; and the said defendant, " then and there, refused to comply with the said con- “ dition, and the said plaintiffs, then and there, refused “ to deliver the aforesaid deed of assignment to the said “ defendant, unless he complied with the condition afore- “ said; and this, he is ready to verify; wherefore he prays “ judgment, whether the plaintiffs, their action afore- “ said against him, ought to have and maintain, &c.”

      Swann, for plaintiffs in error.
    It will be perceived by the agreement, that the plaintiffs had the choice of three modes of paying the award. 1. By bills of exchange, 2. By cash, and 3. By an assignment of Graham's contract.
    It is true, that the words are, that the defendant will take the alignment “ towards” the discharge of the award. But the reason of using the word “ towards” is plainly, because the amount of the award not being then known, it remained an uncertainty, whether the 21,112 dollars of Graham’s purchase money would be sufficient in amount to meet and satisfy the award. The word towards therefore was not used to exclude the idea that the assignment should be a complete discharge of the award, in case the award did not exceed the purchase money; but only to prevent Auld from being compelled to accept the assignment in full discharge of the award, if the purchase money should fall short of the sum awarded.
    1st. We contend that the assignment was a good and sufficient assignment within the meaning and intention of the agreement.
    2d. That the plaintiffs had a right to a release of all demands upon tender of the assignment.
    3d. That the plaintiffs had a right to make such release a condition of their tender.
    1st. It is no objection to the assignment that it expresses the consideration to be a release of all demands from Dunlop and co. for if the plaintiffs had a right to such a release, it was proper to state it as part of the consideration. 2d. The preamble of the assignment states the defendant to be agent of Dunlop and co. and the babendum is to the said Colin Auld, which refers to the premises where he is styled agent; so that it is, in fact, as it ought to be, to Colin Auld agent of Dunlop and co.

    2d. As to the right of the plaintiffs to insist upon a release of all demands.
    1st. It is due by the terms of the contract.
    2d. If not due by the terms of the contract, yet it was due of common right.

      1st. It is due by the contract.
    Every contract ought to have a reasonable construction according to the intention of the parties. Such a release is expressly agreed to be given in case of payment by bills or cash. A payment by the assignment was as complete a discharge of the award, as payment in either of the other modes. The discharge of the amount of the award, and not the particular mode of discharge, was to be the consideration of the release; and having stipulated to give it in the one case, it ought to be presumed to be the intention of the parties, that it should be given in the other, unless there can be shewn some difference in the consideration, or some reason operating upon the mind of the defendant which might have induced the omission of an express agreement to that effect. By agreeing to give it in case of payment by cash or bills, he allows that the plaintiffs have a right to such a release upon discharge of the award. The submission was of all demands; a discharge of the award then was a discharge of all demands; and therefore,
    2dly. Such a release was due of common right. A man has a right to demand evidence of his payment, and of the claims which are thereby satisfied. It is true he may call witnesses, but they may die If a man pay money upon a specialty, he has a right to written evidence of the payment. Shep. Touch. 348.
    3d. The plaintiffs had a right to make the release a condition of the tender. All things were to be done on the same day. They were concurrent conditions, to be performed at the same time. If one party is ready and willing and offers to perform, and the other will not, the first is discharged from the performance of his part and may maintain an action against the other. 4. Term Rep. 761. Goodisson v. Nunn. Doug. 684. Jones v. Barkley.

    Such a release could not operate to the injury of the defendant, or of Dunlop and co. It would not have released any right accruing under the agreement; as was decided in the case of Thorpe v. Thorpe, lord Raymond 235. The covenants of the plaintiffs respecting the lands and the ejectment are all future and contingent, and therefore could not have been released by a release of all demands. Nor was the penalty a present duty. It could only be incurred by a future breach, and therefore is not like a bond to a smaller sum at a future day. Shep. Touch. 339, 340. Buller. 160. 2. Show. 90. Carthage v. Manby. Esp. N. P. 307. Cro. Jac. 170. Hancock v. Field. Cro. Jac. 623. Portor v Philips. Cro. Eliz. 580. Hoe v. Marshall. 5 Co. 70. (b.) Hoe's case.

      E. J. Lee, contra.
    The assignment, in this case tendered, was not good, because it stated part of the consideration to be a release of all demands, which the defendant was not bound to give; and if he had accepted of the assignment in that form, it would have been an acknowledgment that he was bound to give it.
    Whether Auld might with safety have given such a release, is not now the question; he has not contracted to give it, and it is not for us to enquire why he did not. He was unskilled in the law, and he might have supposed that in some way or other, it would embarrass the claims of Dunlop and co. against the plaintiffs for a future performance of their covenants respecting the land.
    2d. The assignment is made to the use of Colin Auld, and not to the use of Dunlop and co. The rents and profits are to be received to his use, and not to that of his constituents. In the operative parts of the assignment he is not named as agent.
    3d. The power of attorney is insufficient, because it does not give full power to act therein, as the defendant should think proper, and does not authorize him to compromise the ejectment.
    But the principal question is, whether the defendant was bound to give a release of all demands.
    The plaintiffs only tendered the papers, but did not deliver them, so that the defendant could not see whether they were correct. They were to do the first act. They were first to make and deliver the assignment before they were entitled to the balance. The words of the agreement plainly show this.
    The agreement does not require him to give such a receipt in the case of payment by the assignment of Graham’s contract. It would certainly have been as easy to have covenanted to give such a release in that case, as in the event of payment by bills or cash. The not doing so, in the former case, and the express agreement for it in the latter cases, creates the strongest presumption that it was not intended by the parties to be given in the former case; and the intention of the parties constitutes the agreement.
    Admitting that by common right, they were entitled to a receipt, it could only be a receipt for the assignment itself.
    There was at least a doubt whether such a release as was demanded would not have discharged the penalty annexed to the contract, or at least the covenants respecting the land.
    A release of all demands is certainly a release of all present duties, and it is said in Altham's case, 8. Co. 154. (a.) that a release of all demands is a release of all causes of demand.
    As the plaintiffs have demurred to our plea, we have a right to look into their declaration; to which, there are two objections.
    1st. That it contains no profert of the award which is the foundation of their action; and
    2d. That it does not aver the difference between the amount of the award, and the purchase money due upon the contract tendered. The declaration only states, that the arbitrators awarded the sum of £. 4379. 9. 0. ¾. sterling, to be due from the plaintiffs to Dunlop and co. and that the plaintiffs having elected to assign Graham’s contract in discharge of the award, tendered an assignment thereof, together with a power of attorney, according to the true intent and meaning of the agreement, in consequence whereof the plaintiffs then and there became entitled to have and receive of the said defendant, the sum of £. 494. 6. 7. Virginia currency, which said sum, the defendant, although required, had not paid, whereby action accrued to the plaintiffs to have 45,000 dollars, the penalty of the articles of agreement.
    C. Lee, on the same side.
    The protestando in the plea saves all objections to the sufficiency of the assignment; and we conceive the objections, which have been stated, are substantial.
    But the principal question is, whether any release at all could be demanded. The contract does not, in any of the cases of payment of the award, require a release; which is a technical word, and means an instrument under seal. But we do not insist upon this distinction, as the law is full in our favor upon the other points. We might safely admit, that the defendant was bound to give a receipt for the assignment; but even that is not due under the contract, nor of common right. However, such a receipt was not demanded, and therefore it is unnecessary to enquire, whether the defendant was, or was not bound to give it.
    The release required would have discharged the penalty of this agreement. Viner. Tit. Release (P.) pl. 18.
    It is not contended, that a release contained in an instrument will release demands growing out of that instrument; this was the case of Thorpe and Thorpe. Hoe’s case does not apply to the present; that was a case of mere possibility of a demand. The covenant of the plaintiffs, not to interfere with the ejectment, was a present duty.
    This is a case of construction only, and the only question is, what was the intention of the parties. If the deed of assignment was not a proper one, or the release demanded was such an one as the defendant was not bound to give, the plea is good, and the judgment must be affirmed.

      Mason in reply.

    All the instruments are to be taken together, 2, Atk. Crop v. Norton. Through the whole it appears that what the plaintiffs are bound to do, the defendant was bound to receive. The payment by the assignment was not more for the benefit of the plaintiffs than of the defendant. If they did not on the 2d of January pay in bills, or cash, they were absolutely bound to assign Graham’s contract; and the defendant might then refuse the bills, or cash, and insist on the assignment; and a court of chancery would have compelled a specific assignment, if they had refused. The discharge of the award by the assignment was the same thing as the discharge by bills of exchange or cash. It would have been a complete discharge of the award, and there is no reason why he should not give a release as well in the one case as the other.
    It is alleged that the release would have discharged the other covenants, and the penalty of the agreement. But the case cited from Viner shews that the covenants would not have been discharged by the release, nor would it have discharged the penalty. The covenant not to interfere was not a present duty. The covenant of the plaintiffs is, that after the assignment, they would not interfere. But a release of all demands does not discharge a covenant before it is broken; until that time it is no demand. The same observation applies to the penalty; it is not a present duty until a breach of the covenant. A bond in the penalty of £ 200, to pay £ 100 at a future day, is a present duty. But in a bill penal, the penalty is not a duty till after the day appointed for the payment of the smaller sum. The difference in declaring upon the two instruments shews their different nature. On a bond you only declare that he bound himself in the penalty; and you take no notice of the condition. But on a bill penal you declare that the defendant having failed to pay the smaller sum, an action has accrued to recover the penalty. To support these positions he cited Esp. N. P. 307. Buller 166. Cro. Jac. 170. Hancock v. Field, Cro. Jac. 300. Tyman v. Bridges. Cro. Jac. 623. Porter v. Philips, 1 Lord Raym. 662. Thorpe v. Thorpe, and Cro. Eliz. 579, Hoe v. Marshall.

    The plaintiffs having offered to perform their part of the agreement, are intitled to their action. Esp. N. P.
      284. Doug. 684. Jones v. Barkley. 4. Term rep. 761. Goodison v. Nunn.

    As to the protestando, it is only an estoppel, or, as lord Coke says, it is an exclusion of a conclusion. It does not put in issue the validity of the assignment. But if it did, the objections are not well grounded. Whether the release ought to have been mentioned as part of the consideration depends upon the question whether the defendant was bound to give such a release; and the objection, that the assignment is made to Colin Auld, and not to Colin Auld as agent of Dunlop and co. is not grounded in fact: For in the preamble of the assignment he is named as agent for Dunlop and co. and throughout the residue of the instrument he is called the said Colin Auld, which refers back to the premises to show in what capacity he was to take the assignment.
    In the premises a complete interest is conveyed to Auld as attorney in fact of Dunlop and co. and the habendum can not, in this case, control the premises. 2. Bl. Com. 298.
    February 28th.
   The Chief Justice,

after stating the case, delivered the opinion of the court.

To entitle themselves to the money for which this suit was instituted, it is incumbent on the plaintiffs to shew that they have performed the very act, on the performance of which the money became payable; or that they are excused by the conduct of the defendant for its non-performance. The act itself has not been performed: but a tender and refusal is equal to a performance; and it is contended that there has been such a tender and refusal in this case.

The pleadings show that the tender was not unconditional; but the plaintiffs insist that the condition, annexed to the tender, was such as they had a right to annex to it, and on their correctness in this opinion, depends the judgment now to be rendered.

The plea does not contest the sufficiency of the deed of assignment and power of attorney which were tendered; and consequently no question concerning their sufficiency can arise in the present case.

The only cause relied on, as doing away the operation of the tender, is that it was made on condition that a release of all the claims and demands of the said John Dunlop and co. on the said Hepburn and Dundas, should first be signed, sealed and delivered to them by Colin Auld.

The only question in the case is, whether Hepburn and Dundas had a right to insist on this previous condition; and it is admitted that this question depends entirely on the agreement of the 27th of September 1799.

That an acquittance should be signed, sealed and delivered before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensible by express stipulation.

There is in this case no such express stipulation. If the payment had been made in bills or money, the release of all the claims and demands of John Dunlop and co. against them was to have been given, not previous thereto, but upon receiving such payment. If then, as has been argued, the deed of assignment and power of attorney are substituted for the payment in money or in bills, and to be made on the same conditions on which payment, in either of those articles, was to have been made, yet there could exist no right to demand a delivery of the receipt before the payment.

If we inspect those covenants which relate to the deed of assignment of Graham’s contract, we find no stipulation respecting a release of any sort The agreement is that he will receive the said deed of assignment at 21,112 dollars, towards the discharge of the award, but he does not engage to give any release whatever.

It is contended that upon the general principles of justice and of law, Hepburn and Dundas had a right to the evidence of the payment they had made without expressly contracting for such evidence; and this is true, so far as to entitle them to a receipt for the deed and power delivered; but neither the general principles of justice, nor of law, give Hepburn and Dundas a right to insist upon any release as a previous condition.

The case has been argued at bar, as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands, to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn and Dundas required the delivery of the release as a condition precedent to their livery of the deed of assignment.

This demand seems not to have been countenanced by the contract ; and of consequence the tender was not such as it was incumbent on Hepburn and Dundas to have made, in order to entitle themselves to the money for which they have brought this suit.

Judgment affirmed with costs.


author: The Court

text:
    MARINE INSURANCE COMPANY of Alexandria, v. JAMES YOUNG.
    This was an action brought in the circuit court the district of Columbia, by James Young, against the Marine Insurance Company of Alexandria, upon a policy insurance on the brigantine Liberty at and from Anacabessa in Jamaica to a port in the United States. The declaration stated, that "James Young complained of the "Marine Insurance Company of Alexandria in custody, &c. "of a plea, for that whereas,” &c. setting forth the policy in the usual form. “In witness whereof the president “and directors of the said Marine Insurance Company of "Alexandria, by William Hartshorne their President, "subscribed the sum assured, and caused the common seal, "and the attestation of their secretary, to the affixed to "the said presents." It then alleged the property of the vessel to be in the plaintiff, and that it was of the value of 5000 dollars, the sum insured. That the said Marine Insurance Company, in consideration of the premium, to be paid by the plaintiff, "did undertake and agree, by their "policy aforesaid, subscribed by their president aforesaid, "with the proper hand and name of the said president "thereto affixed, to assure the said vessel, &c. at the said "sum of 5000 dollars, against the risks specified in the "said policy." That the plaintiff had paid the premium; and that the vessel was totally lost, of which loss the company had notice; "By means of which said premises the "said Marine Insurance Company of Alexandria became liable to pay to the said plaintiff the said sum of 5000 dol-"lars, and being so liable the said Marine Insurance Com-"pany, afterwards, to wit, on the same day and year "aforesaid, at the county aforesaid, assumed upon themselves, "and to the said plaintiff then and there faithfully promi-"sed," to pay him the said sum of money when thereunto afterwards required.

      Assumpsit will not lie upon a policy of insurance under the corporate seal, unless a new consideration be averred Quere, whether as aggregate corporation can make an express assumpsit, unless specially authorized by statute? Whether an action on a policy will lie against this company, in their corporate name? Or whether the declaration must not be against the President alone?
    A verdict will not cure a mistake in the nature of the action.
    A judgment in assumpsit upon a policy is a bar to a subsequent action of covenant on the same policy
    After verdict, every assumpsit in the declaration is to be taken as an express assumpsit.
    There was another count, stating generally, that in consideration that the plaintiff would pay the premium of four per cent. upon the value of the vessel, the insurance company "undertook and agreed" to insure, &c. at the sum of 5000 dollars, against sea risks only, at and from Anacabessa in Jamacia, &c. to a port in the United States; that he had paid the premium, and that the vessel was stranded and lost, of which the Insurance Company had notice; by means of which said premises the said company became liable, &c. and so being liable assumed upon themselves and promised to pay, &c. Nevertheless the said defendants, not regarding their several promises and undertakings aforesaid, but contriving, &c. refused to pay, to the damage of the plaintiff 10,000 dollars. Plea non assumpserunt and issue. Verdict for plaintiff on the first count, and for defendant on the other count.
    Motion in an arrest of judgment;" because the first "count is in assumpsit upon a sealed instrument set forth "in the said count, as containing the contract whereupon “the action aforesaid is brought.” Judgment for the plaintiff; to reverse which judgment the Insurance Company obtained the present writ of error; and the errors assigned were,

    1. “ That assumpsit is brought upon a sealed con-“tract.”
    2. “ That the Marine Insurance Company of Alex-"andria, being an aggregate corporation, is sued upon “assumpsit, instead of upon covenant.”
    3. “That the judgment upon the verdict aforesaid "ought to have been arrested.”
    4. “That according to the act of incorporation, the “ action aforesaid, if maintainable at all, should have “been commenced and prosecuted, against William "Hartshorne, president of the Marine Insurance Company."

      E. J. Lee and C. Lee, for plaintiffs in error.

      Simms and Swann, for defendant.
    For the plaintiffs in error, it was said,
    1st. that the declaration states the policy to be under the common seal, and the law is clear that assumpsit will not lie upon a sealed instrument. The action ought to have been covenant, and not case. The difference is, that when the specialty is only inducement to the promise, and a new consideration intervenes, assumpsit will lie; but where the only contract, which is stated as the cause of liability of the defendant, is fully and entirely contained in the specialty, and no circumstance is added but such as is provided for by the specialty, there it will not maintain a general indebitatus assumpsit, which is the present form of action.
    The declaration states that the Insurance Company by their policy, under the common seal, insured 5000 dollars on the brig, and that the vessel was lost, whereby the company became liable, and, being so liable, assumed to pay. This is the whole substance of the declaration. No new consideration is alleged. The whole ground of liability of the plaintiffs in error is their policy under their common seal. And in such a case the action must be covenant or debt. Marshall on insurance, 596. Park, 396. “The act of parliament 6. G. 1. c. 18. by which the “two Insurance companies” (of England) “were erected, “ ordered that they should have a common seal, by affix-“ing which all corporate bodies ratify and confirm their “ contracts. Hence a policy made by either of those com-"panies is a contract under seal; and if the contract is “broken, the action must be debt or covenant.” 2. Term rep. 479. Foster v. Allanson, and the cases there cited. In that case there was a new cause of action and a separate independent consideration.

      Cro. Car. 343, Brett v. Read. 1 Bac. ab 164. In the case of Baird and Brigs v. Blaigrove, in the court of appeals of Virginia, 1. Wash. rep. 170, there was a subsequent new consideration and parol agreement expressly proved, and upon that ground the court decided that assumpsit would lie. See 2. Calls, rep. 258. Taliaferro v. Robb. The case of Pelly v. Governor and company of the royal exchange assurance, 1. Bur. 341. is an action of covenant upon a policy; so is the case of Warsley v. Wood, 6. Term rep. 710. and Tarleton v. Staniforth, 5. Term rep. 695. assumpsit will not lie upon a specialty. 1. Esp. N. P. 95. Doug. 6. Walker v. Witter. Cro. Jac. 213. Buckingham v. Costendine. 2. Strange 1027, 1028. Bulstrode v. Gilburn. Cro. Jac. 505. Bennus v. Guyldley. Cro. Jac. 598. Dartnal v. Morgan. Cro. Car. 6. Holme v. Lucas. Cro. Car. 31. Foster v. Smith. Cro. Eliz. 242. Reade v. Johnson. 1 Roll. ab. 8. Hutt. 34. Green v. Harrington. Cro. Eliz. 283. Pyers v. Turner.

    If this action is sustainable in law, then the rule requiring a plaintiff to state in his declaration his cause of action will be useless. The reason of that rule is, to ascertain whether the contract is under seal or not, Buller, N. P. 128. And if the judgment of the court below is correct, an action of assumpsit may be maintained upon a bond or any other sealed instrument. The notice stated in the declaration, is what the plaintiff below was bound to give, because the company were not liable, by their covenant to pay, until proof of the loss was produced, and adjustment thereof made. This is only one of the facts necessary to produce a liability under the covenant itself, and not any new consideration, nor is it stated as such in the declaration. The declaration does not say “in “consideration whereof," but simply, "so being liable,” assumed to pay; so that the assumpsit alleged, is nothing more than the very agreement contained in the policy.
    2d. An action of assumpsit, upon an express contract, will not lie against an aggregate corporation.
    They can do no valid act but by their common seal, by which alone the union of the wills of the several members can be testified; and the affixing of the seal makes it a covenant. Perhaps an exception to this rule might be made by the act which creates such an aggregate body politic; but here is no such exception made as will apply to the present case. Marshall on insurance 596.
    3d. If any action is maintainable upon this policy, it ought to have been brought and prosecuted against the president of the company and not against the body politic.

    The words of the act, which incorporates the company (acts of assembly of Virginia, 1797, c. 20, §. 9, and 11) are, “That all policies shall be signed by the president, or “in case of his inability to attend, by the president pro “tempore, and counter-signed by the secretary.” §. 11. "That in case any action shall be prosecuted upon any “policy so subscribed, the same shall be brought against " the president subscribing the same, or his successor in of-“fice; and all recoveries had in such action or actions “shall be conclusive on the company, so far as to render the “stock of the company liable, and no further.”
    Although the sixth section of the same act enables the company to sue and be sued by their corporate name, yet as the subsequent sections prescribe the manner of making policies, and the mode of proceeding in actions upon them, the latter sections must be considered as so far restricting the general expressions of the former. General words in one clause of a statute may be restrained by particular words in a subsequent clause of the same statute, and the whole ought to be so construed, that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. 4. Bac. ab. 645.
    The declaration is bad in stating the body politic to be in custody of the marshal. 1. Bac. ab. 507.
    4th. If it should be said, that this declaration is good after verdict; the answer is, that the verdict will not cure a declaration, which shows that the plaintiff is entitled only to an action of a different nature. The title is not defectively set forth, because every fact is stated which shows that the plaintiff is entitled to an action of covenant. A mistake in the nature of the action is not cured by the statute of jeofails. In all the cases before cited, the question as to the form of action came on upon motion in arrest of judgment, and it is not even hinted that the error was cured by verdict. 2. Term Rep. 479. Foster v. Allanson. 1. Washington's Rep. 170. Baird v. Blaigrove.

    No assumpsit can be presumed, after verdict, to have been proved on the trial, but that which is alleged in the declaration. 1 Term Rep. 141. Spieres v. Parker.

    A verdict will not aid a case where the gift of the action is omitted. Cowper, 825. Avery v. Hoole. Nor does the clause of the Virginia statute of jeofails, which states that a verdict shall cure the omission of the averment of any matter without proving which, the jury ought not to have given such a verdict, extend to a case where the declaration omits to state the ground of the assumpsit. 2. Wash,

      rep. 187. Winston v. Francisco, 1 Call's rep. 98, 101, 102. Chichester v. Vass, 4. Bur. 2455. Doug. 654. (679.) Rushton v. Aspinal. A recovery in this action would be no bar to a recovery in an action of covenant for the same loss. 1 Call 102. Chichester v. Vass. 4 Bac. ab. 14. Cra. Car. 6. Holme v. Lucas.

    For the defendant in error it was contended,
    1st. That this policy is not a specialty.
    2dly. If it is a specialty, yet there was a subsequent assumpsit upon a new consideration.
    3dly. That if it be a specialty, and no new promise sufficient to support an action of assumpsit, yet the declaration is a good declaration in covenant, especially after verdict.
    1st. The declaration does not declare on this policy as upon a deed. It does not say that the company covenanted by their deed: but only that Young did, by a policy of insurance subscribed and attested as herein after mentioned, make insurance and cause himself to be injured, lost, or not lost, &c. upon the body, &c. of the brigantine Liberty, &c. And so they, the assurers, were contented, and did thereby promise and bind themselves to the assured for the true performance of the premises, confessing themselves paid the consideration, &c. In witness whereof the president and directors of the said marine insurance company of Alexandria, by William Hartshorne their president, subscribed the sum assured, and caused the common seal and the attestation of their secretary to be affixed to the said presents in the town of Alexandria, on the said 17th day of December 1800. The plaintiff then avers, that in consideration of the premium, &c. they did undertake and agree by their policy aforesaid, subscribed by their president aforesaid, with the proper hand and name of the said president thereto affixed, to assure the said vessel, at the sum of 5000 dollars, &c. There is no prosert of the policy, as of a deed. In fact, it is not a deed. To make it a deed, it must be sealed with the intent to make a deed, which would be contrary to their act of incorporation. The company had no power to make a policy under seal. The act prescribes the mode by which they shall make policies; which is only by the signing of the president and counter-signing by the secretary. Although there are not negative words by which other modes are expressly prohibited, yet the saying that a thing shall be done in one manner is an implied negative of all others. The president and three of the directors are empowered by the act to make insurance, but the policies must be certified in a certain manner. They have no right to bind the company by a policy under seal. They have no right to use the common seal for any purpose, unless particularly empowered by the constitution or bye-laws of the company. If the company have improperly put a seal to the instrument, which the act of incorporation intended should be a simple contract, and not a specialty, it is their own act, and they have no right to complain. But shall it be permitted for the Marine Insurance Company to say, that by their own act, contrary to law, they have deceived the plaintiff below, and therefore, he shall not recover in this form of action? After having defeated him in this action, and driven him to bring an action of covenant, what will prevent their turning round and saying, that this policy is not a specialty? The company had no power to make a policy under seal, or if they had, the seal has been affixed by persons having no authority from the company, or perhaps by mistake. The objection does not go to the merits of the cause. If there was an error, it was beneficial to the company, in as much as it was a relinquishment of strict right on the part of the plaintiff below, and enabled the company to make their defence with much less risk, as it enabled them to give in evidence, on the plea of non assumpsit, those facts which must have been specially pleaded to an action of covenant. The intention of the legislature in prescribing the mode of making policies, evidently was, that they should not be specialties, but only simple contracts, so as to avoid the necessity of special pleading. If the principle be correct, that the company cannot make a policy but under seal, the consequence will be extremely mischievous to their interests. They will be always involved in the intricacies of special pleading, and the merits of the case will be often lost in the subtlety of legal distinctions.
    Who has the power of using the common seal? Not the president alone, nor any number of the directors, but the company only. But the declaration does not state this to be the seal of the company, but the seal of the secretary; the words are, “have caused the common seal and attes-“tation of the secretary to be affixed.”
    2d. But if the policy is a specialty, yet there is a sufficient assumpsit alleged in the declaration to support this action.
    The action does not depend only upon the facts set forth in the policy. The declaration states other facts, such as the notice to the company, the proof of the loss, and an express assumpsit to pay. These are considerations abundantly sufficient to support the action. If the plaintiff has two remedies he may take which he pleases. A judgment in this case would be a bar to an action upon the covenant.

    It is a strange position that assumpsit will not lie in any case against an aggregate body politic, upon an express contract. Such a corporation cannot act in any case but by the intervention of agents. But by those, it may contract debts by simple contract, as well as by speciality. The East India company have their agents all over the world, and there never was a question, whether such agents could make promises binding on the company pursuant to powers given by the company, for that purpose. By what law are the banks authorised to bind themselves by promissory notes? Yet the gentlemen will not say that they are not liable upon their notes. 3 P. Williams, 419, Rex v. Bigg. 1 Strange, 18. S. C. 2. Burr. 1216. Edie v. E. I. Company. Where the specialty is only inducement to the action, and upon facts growing out of the specialty an assumpsit is made, the action of assumpsit will lie. 2. Term rep. 483. Moravia v. Levy. The declaration states the policy, the sailing of the vessel, the loss, notice to the insurers, and thereupon an express assumpsit to pay the sum of 500 dollars. These new facts bring the case within the reason of the decision in the case of Moravia v. Levy. After verdict, every assumpsit alleged in the declaration is to be taken as an express assumpsit.

    3d. But if this policy is to be considered as a specialty, and there is no new consideration sufficient to support the assumpsit, yet this is a good declaration in covenant.

    It states the policy, and the facts which constitute a breach of the agreement and create a liability on the defendants below. That part which states an assumpsit may be rejected as surplussage, and the residue will make a good declaration in covenant. The want of profert is cured by the verdict. 2 Wilson 362. (Quere) Nor will the issue of non assumpsit, render the judgment erroneous. It has been held that in an action of assumpsit, and not guilty pleaded and issue, the judgment may be entered, for it is only mispleading, and the real merits may as well be tried on that issue as on any other. 4 Bac. ab. 84.
    It is not necessary that the action should be prosecuted against the president of the company. It could not be the intention of the legislature, that the private property of the president should be liable to satisfy a judgment upon a policy made on account of the company, and that he should be left to get his money back again from the company. By the act of incorporation, the joint stock only is liable. The expressions of the act warrant the practice in this case, of bringing the capias only against the president, and then declaring against the company; for it only says, that the action shall be brought against the president, and not that it shall be prosecuted against him to final judgment. The intention of the act could only be to compel an appearance, and to give the president the power of entering an appearance in the name of the company. The act says that all such recoveries shall be conclusive on the company, so far, as to render the joint stock liable, and no further.
    The sixth section of the act renders the company liable to actions in their corporate name; and as the writ is no part of the record, and the company have appeared and pleaded, it is now too late for them to allege this for error. They ought not to be permitted to take the chance of a trial, and when the merits have been found against them, come forward and say, they are not the proper persons against whom the suit ought to have been brought.

      In reply, it was said, that the policy is in the usual form; a form which is generally used, whether the policy be under seal or not: and therefore no argument can be drawn from the peculiar expressions of the instrument. The declaration states it to be under the common seal, which is a technical name for the seal of a corporation. The act which creates this company has no negative words by which they are forbidden to make policies under seal if they think proper. The clause which authorizes them to make a policy by the signature of the president, without the common seal, was introduced for their benefit, so as to enable them to defend actions without the necessity of that special pleading which often attends actions of covenant. The general maxim of law is that every one may wave a provision introduced for his benefit.
    The act of incorporation says, that when any action shall be prosecuted upon such policy, the same shall be brought against the president who subscribed the same, or his successor in office, and all recoveries in such actions shall be conclusive on the company. Not only the capias must be against the president, but the declaration and judgment. How the judgment is to be satisfied is not for us now to determine, nor is it important. The mode of recovery prescribed by the law must be pursued.
    March 1st 1803.

       By the 11. G. 1. c. 30. §. 43. which recites the inconveniences resulting from the necessity of the policies of these two companies being under seal, by reason of their being corporate bodies, they are authorized to plead generally nil debent and to give the special matter in evidence, &c.

       The capias ad. resp. in this case was against “William Hartsborne, "president of the Marine Insurance Company of Alexandria."

      The declaration was against the company in their corporate name.
      This form of proceeding, by the better opinion, seemed to be correct.
      By the form of proceedings in Virginia, which are in some respects similar to those in the kings bench in England the capias is not considered as any part of the record of the action, which is supposed to commence upon the filing of the bill, or declaration.

       The court said there could be no doubt of that; if the declaration sufficiently showed it to be the same cause of action.

       This was admitted by the Chief Justice.

   The Court

reversed the judgment, and ordered it to be arrested, because the action is a special action upon the case on the policy, and the declaration shows that the policy is a specialty.

The court seemed to be of opinion that an action of covenant would lie upon it against the company in their corporate name.


author: The chief justice

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    ABERCROMBIE v. DUPUIS AND ANOTHER.
    Error to a judgment of the circuit court for the district of Georgia. The plaintiffs below (or petitioners as they are called in the record) “aver, that they do “severally reside without the limits of the district of Geor-“gia aforesaid, to wit, in the state of Kentucky, there-“fore they have the right to commence their said action “ in this honorable court, &c.” The defendant is called "Charles Abercrombie, of the district of Georgia, esquire.

    To give jurisdiction to the courts of the United States the pleadings must expressly state the parties to be citizens of different states, or that one of them is an alien. It is not sufficient to say that they reside in different states.
    It was assigned for error that the circuit court had not jurisdiction of the cause, because it does not appear upon the record that either of the parties is an alien, nor that the parties are citizens of different states. And for this error the judgment was reversed without argument.
    The court said that the question had been decided after full argument in the case of Bingham v. Cabot, 3 Dal. 383, and they did not think proper to over-rule that case.

         This averment follows immediately after the ad damnum, at the foot of the declaration.

   The chief justice

said, he did not know how his opinion might be, if the question were a new one.


text:
    LINDO v. GARDNER.
    This was an action of debt brought by the administrators of Archibald Gardner against Abraham Lindo, upon a promissory note, in the circuit court of the district of Columbia, sitting in Washington. The act of congress respecting the district of Columbia had adopted the laws of Maryland, as the law of this part of the district. In Maryland the statute of 3 & 4 Anne, c. 9, respecting promissory notes, had been "introduced, used “and practised by the courts of law,” and thereby, and by virtue of the declaration of rights, section 3d, it became the law of the land; and the courts of Maryland, in their construction of that statute, have always respected the adjudications of the English courts. In the court below there was a verdict and judgment for the plaintiffs; to reverse which judgment the defendant sued out the present writ of error.

      Debt will not lie, in Maryland, upon a promissory note. Quere. Whether the statute of limitations can be given in evidence, on nil debet?

      The declaration is "of a plea that he render to them “336 dollars, 97 cents, money of accompt of the United “States of America, for that the defendant on the 5th “of October 1795, at, &c. by his certain note in writ-“ing of that date, subscribed with his proper manuscrip-“tion, and now here shewn to the court, acknowledged “himself to owe to Archibald Gardner the said sum of “336 dollars and 97 cents, which the said defendant “promised to pay the said Gardner, and to the order of “the said Gardner, at sixty days after the date of the said “note in writing, it being in consideration of value received.” It then avers the non-payment, &c. and makes a profert of the letters of administration which are averred to be “in due form.” The defendant in the court below pleaded nil debet; and after verdict against him, moved in arrest of judgment, because,
    1. An action of debt cannot be maintained upon the promissory note set forth in the declaration.
    2. It does not appear that the plaintiffs had obtained such letters of administration, as to entitle them to maintain an action upon the said note.
    3. The declaration is in the debet and detinet, and ought to be in the detinet only.

    There was also a bill of exceptions stating the refusal of the court to suffer the defendant to give the statute of limitations in evidence on the plea of nil debet.

    The note was in these words, “Philadelphia, Octo-“ber 5, 1795. At sixty days, I promise to pay to the or“der of Mr. Archibald Gardner, three hundred and thirty “six 97/100 dollars, value received.” A. Lindo.

    Peacock, for plaintiff in error,
    was about to produce authorities on the first point, when he was stopped by Chase, justice, who said, that an action of debt will not lie in Maryland upon a promissory note.

       The capias, which, in Maryland, is considered as part of the record, was in the detinet only. The declaration was in neither the debet nor detinet, having omitted those words altogether.

   No opposition being made on the part of the defendant in error, judgment was afterwards reversed without argument.

        See Note B. in the Appendix.