Volume 4 — Harris & Johnson's Maryland Reports

that it w as never the intention of the executrix to charge a . . ° commission: and in the settlement of her final account she had elected to take an allowance for her personal expenses- ' t t - • 1 *11 l‘eu °f her commission. The replication denied all the ^acts steted Ml the answer, ami then followed a statement ?l the amount and nature of the estate.

This was an ^ J - acrion on the case, to recover damages for a fraud in the » . 7 o sale of an unsound slave. The declaration contained two counts — 1. For the sale of an unsound slave; and 2. On a warranty, &c. The defendant, (now appellee,) pleaded not guilty, and issue was joined. L At the trial the plaintiff offered in evidence, that the negro man, mentioned in the declaration, was sold to him by the defendant for g4U0, hi (]le manner mentioned in the declaration.

Ai-fkai. from Baltimore County Court. This was ¡A ¶¶ action of covenant on a policy of insurance dated the 11 tii of March if 99, brought in the name of John M-Fadon, as surviving partner of S. Lawson, for the use of Dorsey and Llollim.

The jj-jj 0p qle complainants, (now appellants,) stated, that they on the 30th of March 1802, being then engaged in com- and shipping in li pifo l/c, in the state of Virginia, and possessed in their right of a ship called The Fox, of the . ~ , , . . value of §4000, and supposed by them tope on a voyage from Ifingston, in the Island of Jamaica, to Fort Repvbli-can from thence to Norfolk, and wishing to make in- } ' o surance on the said ship to the amount of her said value, *…

<p>Appeal from Baltimore County Court. This was an action of assumpsit for money had and received, laid out and expended, and lent and advanced. The defendants, ^now appellants,) pleaded the general issue.</p> <p>1. At Ihe trial the plaintiffs, (the appellees,) read in evi-a bill of lading signed by Henry Yearly, master of brig Hunter, dated the 18th of August 1810, for rhe whole of the cargo óf the said brig, shipped by 8a-Wright at the port of Baltimore, and bound to Mar-Unique, and there to be delivered to Silas Marean. And an indorsement made on said bill of lading by Wright, on 24th of August 1810, while the brig was on the high seas prosecuting her voyage to Martinique, whereby, in consideration of the sum of one dollar, he assigned, &c. to the plaintiffs, the bill of lading, and the merchandise therein mentioned. They further gave in evidence, a deed regularly executed, delivered, acknowledged and recorded, £Fris7¡Z to them, dated the 24th of August 1810, being in trust to se.cure the plamtms as endorsers, whereby was conveyed to them a tract of land called Stratton, in Queen-£nne’s county; also the brig called the. Hunter, to-geth'er with her tackle, &c. also all and singular the cargo, goods, &c. laden or to be laden on board the said brig, dur-"lng ber then voyage, and all the profits and proceeds the.ro-&c. They also gave in evidence, that the brig, with her cargo on board, sailed on or about the 18th of August |8io, on her voyage to the Island of Martinique, where she arrived on or about the 5th of October in that year, They further gave in evidence the deposition of Benjamin Noland, taken on their part, stating, that he sailed from the port of Baltimore 6n or about the last day of August 1810, to the Island of Martinique; that, he went out by the order of the defendants, and .Undrew, Benjamin, James and Thomas Ellicott, or Elias. Ellicott, but he believes Thomas Ellicott, to seize the cargo of the brig Hunter, caPt Yearly, that sailed a few days previously thereto from Baltimore to the Island of Martinique, with a cargo of flour belonging to Samuel Wright. He had a letter to that purpose from the defendants, and the said Ellicotls, to seize the said pargo for the purpose of securing debts due to them respectively from Wright. He arrived at Martiniflue in September 1810, and before the arrival at that place of the brig Hunter. lie received from Mr. C. B. Tuttle, the partner of Silas Marean, the consignee of the said cargo, and who was then absent from the Island, the sum of 86700, and upwards, about the last, of October 18? 0, be • ing part of the proceeds of the cargo of the brig Hunter, received for the account of the defendants, and the £tli-cotta. He returned to Baltimore in November or December 1810. with the said sum of 86700, and upwards, which be then paid over to the defendants and the Ellicolts, on account of their respective claims due by Wright to them. He took to Martinique with him separate powers of attorney from the defendants, and from Andrew EHicott, and others, which said letters of instructions herein before mentioned, and powers of attorney, he delivered up, according to the best of his recollection, to the parties who gave them to him, but he is not certain whether he delivered the powers of attorney up to the parties, or whether he left them at Martinique. The plaintiffs further gave in evidence the agreement signed by the counsel, and annexed to the deposition of Noland, in these words: “it is agreed that the annexed deposition be read in evidence in the above cause, so far as the same matters contained are competent and legal evidence.” They also gave in evidence, that Noland, on his return from the Island of Martinique to Baltimore, sometime in November or December 1810, paid to the defendants the sum of S87S5, part of the said sum of g6'700, which part was claimed by the defendants- as being due to them from Wright, by virtue of a certain promissory note from him to them made on the loth of August 1810, and payable 83 days after date, for 8735; which note they gave in evidence. And the plaintiffs, for the purpose of proving the precise sum paid by Noland to the defendants, produced Samuel Sterett, who proved that James Che&ton, one of the defendants, did, immediately after the arrival of Noland, deliver the said promissory note to the witness, and requested him to deliver it to JIright, or his trustees, as they the defendants had received the amount thereof in consequence of.an attachment, or some legal proceeding-in the If rst Indies-, that the witness did go to the counting-house of Wright, for the purpose of delivering the said note, but not finding him there, he afterwards presented it to N. F. Hilliams, one of the present plaintiffs, who declined receiving it. The defendants then offered to readin evidence the cross examination of Benjamin Noland, taken at the same time with the direct examination, under the agreement of counsel herein before set forth, to wit: “The said Benjamin Noland being cross examined on behalf of the defendants, upon his oadi answereth and saith: Interrogatory 1st. When you arrived at Martinique did you seize the cargo of the brig Hunter, or institute any process against it on the part of the defendants? To which he answers, that when he arrived there he employed a lawyer to seize the cargo, and the lawyer instituted a suit in the court cf St. Fierres, and when the brig arrived, the cargo was seized and condemned for tbe monies due to the defendants and Messrs. Ellicotts. That Mr. Benjamin Ni-ckolson, declaring himself to be the agent of the plaintiffs, instituted counter proceedings in the said court, to which the plaintiffs were made parties, and that the court definitively declared a sale of the property for the payment of the claims of the defendants, and Ellicotts. That the sum of money the deponent received from Mr. Tuttle was paid in pursuance of the decree of said court.” To this evidence the plaintiffs objected; but the Court, [Hollingsworth, A. J.] was of opinion, that it was competent evidence to prove that the money was paid by Tuttle, and that Noland received the money in the character, and under the impressions-stated in his last mentioned deposition, and no further; and it was read accordingly. The defendants excepted.</p> <p>2. The plaintiffs further gave in evidence, that the brig Hunter was the property of Wright, and that on the 15th of August 1810, he was, and during his life afterwards continued to be, a citizen and resident of this state; and that the plaintiffs and the defendants, and the Ellicotts, then were and yet are citizens and residents of this state; and that the cargo of the brig Hunter, mentioned by Noland, is the same cargo of the brig Hunter, mentioned and contained in the deed and bill of lading aforesaid. They also gave in evidence, that they, for the accommodation of Wright, and without any other consideration or motive, did endorse and draw for Wright the promissory notes in the deed of August the 24th 1810 enumerated, which notes were discounted by If right in one of the banks of Baltimore for his own use and benefit, and the monies arising therefrom was received by him; and also that the plaintiffs took up and discharged the said notes as they severally became due, before the bringing of this action. They also gave in evidence, that the whole property assigned to them in and by the said deed and assignment, was not sufficient to reimburse them for the sums by them paid in discharge of the said notes The plaintiff then prayed the court to direct the jury, that if they believed the facts stated on the part of the"plaintiffs, and that the articles mentioned in the bill of lading were the property of Wright, who shipped the same on the 18th of August 1810, on board the brig Hunter, then bound on a voyage to the Island of Martinique, in the West Indies, and consigned them to Silas Marean of that Island, for sales and returns, that immediately afterwards the brig, with the said articles on board, sailed and proceeded on the said voyage; that’ on the 24th of the said month, and long before the arrival of the brig at Martinique, Tf right, for a valuable consideration, sold, transferred, and assigned the said .articles in the bill of lading mentioned, to the plaintiffs, by arf assignment under his hand of the said bill of lading, and also by the deed, aforesaid; that the brig and cargo arrived at St. Pierres, in Martinique, some time in the beginning of the month of October in the same year, when and where the cargo was delivered by the master the brig- to a certain C. B. Tuttle, the co partner in trade of Silas Marean, and were by him sold, and the proceeds thereof, amounting to 86700, and upwards, were by him received; that the defendants, together with Andrew Elli-eott, &c. having demands against Wright, sent out to Martinique a certain Benjamin Noland as their agent, with instruction to seize the cargo for the purpose of satisfying the demands which they had against 14 right', that Noland did, as their agent, without the authority of Wright, or of the plaintiffs, or either of them, receive from Tuttle, some time in the. month of October 1810, the sum of 86700, and upwards, being part of the proceeds of said cargo, as payment of the said demands; that Noland on his return from Martinique, some time in the month of November or December in the said year, paid to the defendants the sum of §735, part of the sum of ¡86700, and upwards, which was claimed by the defendants as being due to them by Wtight, by virtue of liis promissory note to them of the 15th of August 1810, and payable 85 days after date; that then the plaintiffs are entitled to recover from the defendants the sum so by them received. The defendants then further gave in evidence, that Wright, at the time of making said deed to the plaintiffs, was wholly insolvent, and unable to pay his debts,- and that lie did afterwards apply to the general assembly of this state, and obtained a special act of insolvency, .vhich said act, 1810, eh. 169, they gave in evidence; arid that 14 right did, in pursuance of and by virtue of this act of assembly, apply by petition to Baltimore county court, who released him as an insolvent debtor; which petition, with all the papers and proceedings thereon, they gave in evidence. The plaintiffs then gave in evidence, that at the time when Wright purchased the said flour from the defendants, and gave his note therefor, he was in good credit, and believed himself to be in safe and solvent circumstances, and purchased the flour for the purposes of his general trade. The defendants then proved, that the note given to them by Wright, was for part of the flour shipped as aforesaid to Martinique', and that Wright, at the same time, purchased more flour than the brig would carry; that the surplus was returned to the defendants, and the note was given for the nett amount actually received from them by Wright. The court gave the direction as prayed by the plaintiff's. The defendants excepted.</p> <p>3. The defendants then offered to read in evidence, a paper purporting to be the record of certain proceedings of a court of justice, called the court of First Instance at Saint Pierres in the Island of Martinique, of which the following is a true translation, viz. “We, John Amans Astorg, President of the tribunal ef the First Instance/ sitting at St. Pierres, Island of Martinique, certify, that the signatures attached unto the documents hereto anne'x-ed? wh¡c|, are_</p> <p>1st. Copy delivered by Borde, chief clerk of the tribunal of our ordinance, of the 6th October 1810, giving permission to Messrs. B. & J. Ellicott, Andrew Ellicott, Thomas Ellicott, and Owings and Chcston, represented by Benjamin Noland, to seize, stop, and put a guard on board the brig Hunter.</p> <p>2d. Original attachment for the seizure and arrest made in the hands of Messrs. Silas Marean and Tuttle, by the sheriff Dejean, 6th October 1810.</p> <p>Sd. Certified copy by fronzat, attorney in the county in this Island, of an act of agreement and security relative to the seizure of the flour, signed C. B. Tuttle, Thomas T. Gantt. & Tackier, the 6th October 1810.</p> <p>4. Original petition presented to us in the name of the said Messrs. Ellicotts, and associates, 9th Octobet 1810, which was duly notified the same day by the constable Touin, to Mr. Samuel Id-right, legally represented in this cause by the consignee of the cargo.</p> <p>5th. Copy of the interlocutory judgment of (he 9th of October 1810, notified by the constable Bruin.</p> <p>6th. Copy of another preliminary judgment of the 10th October 1810, notified by the constable Ihves</p> <p>7th. Copy of the process verbal of the viewers, proving the identity of the flour seized with that sold by the plaintiffs to Mr. Samuel Wright, notified by the constable Brum.</p> <p>8th. Copy of the definitive judgment of the 11th October 1810, at the end of which is the security of Mr. End. Gervais, both notified by the constable Fayola.</p> <p>9th. The copy of an act of opposition signed by Villette, attorney of, and notified by the constable Rives, for Messrs. Nicholson and Williams, represented by Mr. Benjamin Nicholson their agent.</p> <p>10th. The legal document, (la piece legale,) duly notified by the constable Bruin the 16th October 1810, contain-mg first — A translated copy, (by the sworn interpreter,) from the English language, of a letter addressed the 30th August 1810, by Messrs. Joseph H. Nicholson and Williams, and postcripted by Samuel Wright, to Mr. Silas Marean, which contains the confirmation of the powers as well of Mr. Marean as agent of Mr. Wright, as of Mr. Benjamin Nicholson as agent of Mr. J IS. Nicholson and N. F. Williams. Secondly — A translated copy by the said interpreter of the deed of conveyance made by the said Samuel Wright to the said Nicholson and Williams the 24th August 1810. Thirdly and lastly — Copy of the petition of the said Nicholson and Williams, by third opposition, (Tierce opposition) against our judgment of the 11th October 1810, presented by Be Bernard, attorney— The whole notified in the name of the said Nicholson & Williams.</p> <p>11th. Copy of ihe definitive judgment oí the 16th Go tober 1810, notified the nest day, the 17th, by the eonsla-ble Berharbe — Are truly the signatures of Borde, chief clerk of the cou rt, of Pronzat, Be Bernard and Willette, attorneys in the courts of this Island, of Touin, Dejean, Bruin, Rives, Fayola and Berharbe, constables in the court of ¡S’L Pierres, all in their said functions, and that full and entire faith and credit ought to be and arc given thereto, as well in courts of justice as thereout. Given forth at our Hotel at St. Pierres, Martinique, 25th November 1811.</p> <p> Jlstorg. </p> <p>Sealed the same day.</p> <p>(Seal) Le Maistre, ste. Isle.”</p> <p>Here follows the certificate of the governor, &c.- of the Island of Martinique, (in English,) dated the 26th of November 1811, with the seal of the government of Martinique affixed, and signed,</p> <p> “Charhs Wale.” </p> <p><:Xo. 1. Order to seize, stop, and put a guard on board the brig Hunter, Capt. Yearly, 5th October 1810.</p> <p>Opon the petition presented to the tribunal of the first instance, sitting at St Pierres, Martinique, by Messrs.</p> <p>Benj. & James Ellicoll, and associates, the following has been extracted: Seen and permitted to form in every place where it may be necessary, opposition to the departure of the American brig Hunter, captain Yearly, now in this road; and in case it becomes necessary, to establish one or more Gendarmes as a guard on board, at the risk, peril and fortune, of whomsoever it may belong; as also permitted to make seizure, arrest or opposition, and even levy execution for the preservation of all the .rights of the just owners, and these presents shall be deposited among the minutes of the court. Commanded, &c. at St. Pierres, 5th October 1810.</p> <p>Signed, Jlstorg,</p> <p>Coll. Borde.</p> <p>Sealed.</p> <p>Borde.</p> <p>“No. 2. Seizure made in the hands of Messrs. Marean and Tuttle, the 6<h October 1810.</p> <p>In the year 1810, the 6th of October, in virtue of the order of Mr. The President of the Tribunal of the First Instance of this city, under date of the 5th instant, signed and sealed in legal form, upon the request of Messrs. B. fy .1. Ellicott, Jlndrew EUieott, Thomas ElMcott, and Givings & Cheston, represented by Mr. Benjamin Noland, do-miciliated in five office of Mr. Pronzat, sworn attorney in tisis Island of St. Pierres, I, Joseph Dejean, admitted constable, (matriculated,) recorded in the tribunal of the first instance in this city, there residing, and here undersigning, notified and left this copy of attachment with Mr. Silas . Marean, represented by Mr. Tuttle personally, in speaking to the latter in his house that he might not be ignorant of the declaration that I seize, arrest provisionally in his hands, all that he might have or owe,- will have or will owe hereafter, to Mr. S’amuel Tf right, forbidding him in the name of the king and justice, to let escape or deseize himself from, until it shall be otherwise decided by justice, under pain of answering in his proper and private name for the sum 0f §(¡7-94^ principal, exclusive of costs and interest, requiring him to retain the foregoing in his possession, and moreover to make a positive declaration on the present attachment, and support it by path should need require it; and I have to the said Silas Marean, represented by Mr. Tuttle, to him, speaking as before recited, declared that summons will be given him in time and place, of all which this is proof.</p> <p>Signed, Dejean.</p> <p>“No. -3. Agreement with C. B. Tuttle, and security of Mr. Thomas T. Gantt and Vachier, upon the seizure of the flour, 6'h of October 1810.</p> <p>This 6th of October 1810, I the undersigned Caleb B: Tuttle, American citizen, and partner and representative of Silas Marean, acting as well in my personal name, as agent of the said Silas Marean, considering that the brig Hunter, captain Yearly, the cargo of which is to us don-signed by Mr.,Samuel Wright of Baltimore, was, on its' arrival yesterday in this road, seized and arrested at the suit of Messrs. B. & J. Ellicott, A. Ellicott, Thomas El-licott, and Owings & Cheston of Baltimore, represented by Mr. Benjamin Noland, and that guards have been put on board in virtue of the orders of Mr. the president of the civil court of this city, under date of yesterday, in order to prevent the 'landing of the flour composing the cargo, and particularly of 653 barrels of flour sold by the re-claimants to' the said Samuel Wright; and considering moreover the seizure and arrest made in our hands this day by the said claimants, to the prejudice of the said Samuel Wright, as also that the said cargo may be placed so as to prevent any unfortunate accident on board, and to profit of the favourable moment for the sale — declare, as well for mysélf as for the said Silas Marean, I render myself guarantee and responsible to the said B. & /. El-licott, A. Ellicott, T. Ellicott, and Owings and Cheston, of Baltimore, represented here by the said B. Noland, for the entire value of all the rights of the claimants, and all the just and founded claims which they can have legally, and exercise against the said Samuel Wright, by reason of which they have made the above mentioned seizure, and that only unto the amount of the nett proceeds of the cargo of the said brig Hunter, to us consigned, after the sale thereof shall have been made; promising and obliging my- • 9elf, as well for myself as for the said Silas Marean, to pay to the said claimants, or their agents or representative, the amount of the sum which shall be admitted to be to them due by the said Samuel Wright, unto the amount of the nett produce of the said cargo; provided the said sum shall prove, sufficient to pay what shall be due. immediately as we shall be authorised to make the said payment by order of justice. And we, Thomas T. Gantt and Antoine Vaehier, both established merchants at St. Pierres, after having taken eoguizcnce, of the above, engagement e.n-tered into, as well by Mr. Tuttle as bv Mr. Silas Marean repre« sented by the said Mr Tuttle. declare that we render ourselves personally responsible and guarantees for the execution of the said engagement, jointly and severally, with the said Silas Marean and C !i. Tulfle, for which we. bind all our estates present and to come Done at St. Pierres, Martinique, the said 6th day of October ¡810.</p> <p>Signed, C B. Tuttle, (Seal.)</p> <p>Thm. T. Gantt, (Seal.)</p> <p>Vachier, (Seal.)</p> <p>Signed and sealed in presence of) (Signed) Pronzat V Desgault. J</p> <p>Certified to be conformable to the original remaining in tny possession. St. Pierres, 10th October 1819.</p> <p> Pronzat. </p> <p>“No. 4. Petition of Messrs. Ellicott, &c. to the judge of St. Pierres, against Samuel Hriglit, legally represented by Messrs. Marean & Tuttle, consignees of the cargo of the brig Hunter, 9th October 1810.</p> <p>To Mr. the honourable the president of the court of the first instance, sitting at St. Pierres, Martinique. The humble petition of Messrs. Benja. & James Ellicott, Jln-drew Ellicott, Thomas Ellic.oil, and Owings and Lheston, all merchants at Baltimore, represented in the colony by Mr. Benja. Noland, at present at St. Pierres, represent Sir, that Sir. Samuel Wright, their fellow citizen, had formed the project of a fraudulent bankruptcy, in which he was willing that the petitioners should lose something. For which purpose he transported himself to them the 14th and 15th of the month of August last, and bought the quantity of 653 barrels flour for the sum of 6794 dollars. This flour was afterwards freighted on board the brig Hunter, captain Yearly, and expedited for Martinique. A few days afterwards Mr. Samuel Wright suspended his payments, and made a failute, after having made to certain persons, fictitious creditors, a fraudulent conveyance of almost, all his property. These culpable underhand dealings, which the laws punish so severely, have given to the petitioners the. assurance that Mr Samuel Wright intended to despoil them of the price of their flour, ansi that he would inevitably have executed his design, if they had not exerted themselves to counteract him. In consequence they have dispatched a light vessel, with Mr. Noland their agent, to pursue the vessel which carried away their flour, and have had the happiness that Mr. Noland should arrive at St. Pierres before the brig Hunter, and that on her arrival in port he has detained die vessel, and obtained permission to seize the flour, &c. &c. Mr. Tuttle, partner of Mr. Ma~ rum, consignee of the vessel, and agent or representative of Mr, Samuel Wright in this colony, in order to obtain the release of the flour, has given security, and obliged himself to pay the claim of the petitioners immediately, as by tj,e payment shall be ordained. To obtain this end the petitioners request, that it will please your honour to permit them to summons to an audience extraordinary immediately, Mr. ■ Samuel Wright of Baltimore, proprietor of the cargo of the brig Hunter, ill the persons of Messrs. C. B. Tuttle and Silas Marean, consignees of the said cargo, to come and hear themselves condemned to pay the petitioners the sum of 86794, the price of the flour by them to him sold, and composing the cargo of the said brig Hunter, with interest, &c. &c. which shall be executed provisionally, &c.--In consequence decree, that the petitioners receive the said sum of Messrs Tuttle and Marean out of the proceeds of the sale of the said cargo, which being done, their obligation shall be discharged, which shall be executed, &c. under all reservation. This is justice.</p> <p> Pronzat. </p> <p>, Seen, &c. permitted, summoned as requested, ordained» &c. at St. Pierres, Martinique, 9th October 18 It).</p> <p> Astorg. </p> <p>In the year 1810, on the 9th October, at the request of B. & J. Éllicott, &c. merchants at Baltimore, represented in this colony by Mr. B. Noland, at present in this city of St. Pierres, for which he is domiciliated at the office of Mr. Pronzat their attorney, situated in this city of St. Pierres, I John Baptiste Touin, constable, admitted and registered in the court of the first instance of this city, there residing, undersigned, notified, and gave a copy of a translation of the different pieces of requests and orders before mentioned-, and of the present summons, to Mr. Samuel Wright of Baltimore, proprietor of the cargo of the brig Hunter, in the person of Mr. C. B. Tuttle & Silas Marean, consignees of the said cargo, in speaking to a clerk domiciliated, that they might not be ignorant of a citation to appear this day, the 9th instant, at 11 o’clock in the morning, at the court-house of this city, before Mr. the president of the said court, to see judged to the claimants the object of their demand contained in their petition. All of which I have performed.</p> <p> Touin. </p> <p>“No. 5. Interlocutory judgment between Messrs. Elli-cott’s, &c. and Mr. Samuel Wright, legally represented by Messrs. Marean & Tuttle, 9th October 1810.</p> <p>Extract from the register of the clerk’s office of The Tribunal of the First Instance, sitting in the city of St. Pierres, Island of Martinique, on Tuesday the 9th of October 1810, in the morning, at an extraordinary hearing before us, John Amans Astorg, president of the tribunal of the first instance, sitting in the city of St. Pierres, Island of Martinique, between Messrs. B. 8? J. EUicott, &c. and Owings Sf Cheston, merchants of Baltimore, represented in this city by Mr. Beniamin Noland, plaintiffs, by petition notified by Touin, this day appearing by Mr. Pronzat, attorney of one part, and Mr. Samuel Wright, represented in this Island by Mr. Silas Marean i A C. B. Tuttle, defendant, appearing by Mr. Villette, attorney on the other part. Parties heard, and the attorney of the king in his conclusions on the petition of Mr. Villette, and by consent of Mr. Pronzat, we order that the documents be exhibited ■upon which their demands are founded, which shall be communicated in the original, upon a receipt being given in due form. Costs suspended, which shall be executed notwithstanding appeal, on giving security, which shall be received before us in the accustomed manner. Done and given forth by us, the president of the aforesaid tribunal, at St. Pierres, Martinique, the day and year aforesaid, and thus signed on the register.</p> <p> Jistorg, </p> <p>Borde. ”</p> <p>Here follows a certificate of the preceding having been notified, and a copy delivered, to Mr, Samuel Wright, represented by Messrs. Marean & Tuttle, to appear on the I Oth October, at ¡0 o’clock in the morning, at the courthouse, &c. and signed (by a constable, &c.) Bruin. “No. 6. Other preparative judgment between Messrs.</p> <p>Ellicotts &c. and Mr. Vright, lOth October 1830.</p> <p>Extract from the register of the clerk’s office of ’ihe Tribunal of the First Instance, sitting in the city of St. Pierres, Island of Martinique, on Wednesday the 10th of October 1810, in the morning, at an extraordinary audience before us, John Jlmans Jist.org, president of the tribunal of the first instance, sitting in the city of St. Pierres, Island of Martinique, between Messrs. B. tj J Ellicott, Jl. Ellicott, T. Ellicott, and Owings&i Cheston, merchants of Baltimore, represented in this city by Mr. Benjamin Noland, plaintiffs, by petition notified by Touin the 9th of this month, and in execution of the appointment of the said day, appearing by Mr. Pronzaf, attorney of one part, and Mr. Samuel Wright, represented in this Island by Mr. 8. Marcan and C. li. Tuttle, defendant, appearing by Mr. Villette, attorney, of the other part. Parties heard, and the attorney for the king in his conclusions, we order, before final judgment, that by viewers agreed on or named by the judge in the common form, verification shall be made of the identity of the flour claimed, with that which was sold by the plaintiffs, and that by a comparison of the brands which shall be presented by Mr. Pronzat, with that on the barrels, which shall be made report of by a process verbal, the parties present, or duly notified, in order, upon the same being deposited and reported, judgment of what is right may be rendered. The court ratifies the appointment respectively made by the parties of inspectors of Mr. William Parsons & Hooper, who are dispensed from an oath, and authorised to name a third, who is also dispensed from oath. Costs reserved, which shall be executed notwithstanding appeal, on giving security, which shall be received before us in the accustomed manner. Done and given forth by us, the president of the aforesaid tribunal, at St. Fierres, Martinique, the year and day aforesaid, and thus signed on the register.</p> <p> Jistorg, </p> <p> Borde. </p> <p>We appoint Thursday the 11 th of this month, at 8 o’clock in the morning, to proceed in the operation ordered.</p> <p> Win. Parsons. </p> <p>St. Pierres, 10th October 1810.”</p> <p>Here follows a certificate signed Dy J. Fives, constable, &c. notifying that he had delivered a copy of the preceding appointment and notification of the day, &c. to Mr. S. Wright, in the person of Mr. Sitas Marean & C. B. Tut-tle; also a copy to Mr. Vitletle, their attorney, to appear, &c.</p> <p>“No. 7. Process verbal of the inspectors, proving the identity of the flour the 11th October 1810.</p> <p>Extracts from the minutes of the clerk’s office of the tribunal of the first instance, sitting at St. Pierres, Island of Martinique.</p> <p>We the undersigned, named to verify the flour arrived from Baltimore by the brig Hunter, captain Yearly, declare, that we transported ourselves this day at 8 o’clock in the morning, to the warehouse of Mr. Garout, where the said flour is deposited. We there discovered 653 barrels, marked for the most part J. Ellicott, E. Ellicott, B. Ellicott, and some other of the mark U. L. M. and by the representation to us made by Mr. Pronzat, attorney of the Messrs. EUicotts, of a note of the marks of 653 barrels, we have ascertained the identity of it with those on the barrels. St. Pierres, 11th October 1810.</p> <p>Signed W. Hooper,</p> <p>TV. Parsons.”</p> <p>(Ordered that the foregoing be deposited in the minutes of the clerk’s office of the tribunal of the first instance, thence to be delivered to who may have occasion to require it, St. Pierres, Martinique, 11th October 1810.</p> <p>Signed rfslorg.</p> <p>Coll. Borde.”</p> <p>Here follows a certificate of the preceding having been notified to Mr. Wright, &c. to appear, &c. as herein before stated.</p> <p>“No. 8. Definitive judgment.</p> <p>To all present, and to whom these presents shall come, Greeting. The tribunal of the first instance, sitting in the city of St. Pierres, in the Island of -Martinique, has rendered the following judgment, between the Messrs. Benjamín & James Ellicott, Undrew Ellicott, Thomas El-licott, and Owings & Cheston, merchants of Baltimore, represented in this Island by Mr. Benjamin Noland, by power of attorney, plaintiffs, by a petition answered the 9th of this month, and in execution of the appointment of the tenth, appearing by Pronzat, attorney on the one part, iind Mr. Samuel Jf right, represented by Mr. Silas Ma-rmn & C. B. Tuttle, defendant, summoned this day, ap-peavirg bv Mr. Vilietle, attorney, on tiie other part. Parties being heard, and also the King’s attorney, the court, considering the result of the process verbal of the verification reported of the identity of the fiour with that in-speeded by the arbiters, has condemned and does condemn the defendant to pay to the plaintiff», in round dollars, the sum of g6f84, being the price for which they have sold him the Hour, and comprising the cargo of the brig Hunter, which sum shall be accounted to them by the Messrs. Tuttle & Marean, out of the proceeds of the sale made by them of the cargo; provided nevertheless, that the plaintiffs shall give them bonds and sufficient security, to be accepted by.them, for the return at Baltimore of the biils which they hold of Mr. (fright for the amount of the said flour, which bills shall be, in consequence of the payment made in execution of these presents, null and of no value against the defendant. Which being done shall release them from all demands therefor from all persons whatsoever. Besides, the defendant is condemned to pay interest on the said sum, counting from the day of the demand, arul all costs, which shall be executed notwithstanding any appeal under the same security. Commanded and ordered to all constables, who are required to put in execution this judgment; and for that purpose are authorised to resort to summonses, intimations, and other acts, which may be necessary when thereto legally required. In testimony whereof the present judgment has been signed by the president of the tribunal, and by the clerk. Si. Pierres, .‘Martinique, Thursday the llfhof October 1810, in the morning, at an extraordinary audience.</p> <p>(Signed on the Record,) Borde, Clerk, and</p> <p>Jlsf.org, President.</p> <p>Coll. Borde.</p> <p>Sealed at St Pierres, Martinique, the said day.</p> <p>Le Maistre, Scte. Isle.</p> <p>I declare in execution of the foregoing judgment, that I render myself security for the return of the bills in Jlme-rica. St. Pierres, 11th October, 1810.</p> <p> Em. Gervais.” </p> <p>Here follows a certificate of the foregoing being notified to Mr. 1fright, &c.</p> <p>“No. 9. Act of opposition by Joseph 11. Nicholson & Nathaniel PI Williams, represented by Benjamin Nicholson, 12th October 1810.</p> <p>At the request of Joseph H. Nicholson & Nathaniel F. Williams, merchants of Baltimore, represented by Mr. Benjamin Nicholson, at present in this city, be it signified and declared to Mr, Tuttle, merchant of St. Pierres, as well in his own name, as consignee of the cargo of the brig Hunter anchored in this road, that the claimants formally oppose the said Tuttle’s paying or letting escape out of his hands, info any other persons whatsoever, the funds which he now has, or shall have, belonging to Mr. Samuel Wright, notwithstanding any judgment which may have been obtained by Messrs. Ellicotts & Owings, merchants 0f Baltimore, calling themselves creditors of Mr. Samuel Wright, under pain of paying twice, and also all costs, losses, damages and interest. With declaration that the plaintiffs will prosecute at law, immediately, Messrs. Elli-colts, and all others that may be necessary, under all reserves and protestations which he is entitled to; all which I have performed.</p> <p> De Bernard. </p> <p>The foregoing opposition was notified by a summons of Bruin the 12th of this month, conformably to copy.</p> <p> Villette. ’’ </p> <p>Here follows a certificate of notification to Messrs. El-licotts, &c.</p> <p>“No. 10. Containing, 1st. Letter of Nicholson & Williams, and S. Wright, to S. Marean. 2d. Deed from If right to Nicholson & Williams. 5d. Petition of Nicholson & Williams to the judge of St. Pierres, dated 16th of October 1810.</p> <p>1st. To Silas Marcan, Esquire. St Pierres, Martinique, Baltimore, August 30, 1810.</p> <p>Sir — Mr Benjamin Nicholson, the bearer, goes out with full powers to take possession of the brig Hunter, and- her cargo, lately consigned to you by Mr Samuel Wright. He carries with him the deed of indenture, duly authenticated, which conveys the property to Nathaniel F. Williams and myself. For your agency in the business, Mr. Nicholson is instructed to allow you your regular commission. I understand that an agent is going out for the purpose of attaching this property for the use of Messrs. Elli-cotts, and others; but Mr. S. If right’s notes to them will not be due until November, and they can lay no attachment until that time, even if the property still continued to be Wright’s. From the intimacy between your brother, T. Marcan and N. F. Williams, we are induced to hope that you will use all exertions for our interest. If the property is sold when Mr. Nicholson arrives, you will account with him for the proceeds.</p> <p>I am, Sir,</p> <p>Yr. Obt. Servt.</p> <p> Joseph H. Nicholson, </p> <p>For self & N. F. Williams.</p> <p>Sir — You will please to conform to the above instructions, and oblige your ob’t. serv’t.</p> <p> Sami. Wright.” </p> <p>2d. Here follows the deed from Samuel Wright to Joseph H. Nicholson and Nathaniel F, Williams, dated the 24 th of August 1810, stating that the said Nicholson &l Williams had endorsed sundry promissory notes for the said Wright, to the amount of 822,450, endorsed by the said Nicholson, and $8000 endorsed by the said Williams, and to secure, save harmless, and keep indemnified, the said Nicholson 8f Williams, as endorsers, the said Wright conveyed to the said Nicholson & Williams, a tract of land called Skalton, lying in Q?«eew-Anne’s county; also all that brig or vessel called The Hunter, together with her tackle, &c. and all and singular the cargo, &c. and all profits and proceeds thereof, also ten shares of stock in the Union Bank of Maryland, also twenty shares in the Union Manufacturing Company, &c. &c. in trust, that the said Nicholson Sf Williams shall take possession of the said property, and when proper sell, &c. and the proceeds to apply to the discharge of all and every of the said promissory notes, and the balance, if any, pay over to the said Wright, &c. Acknowledged before two justices of Baltimore county on the 24th of August 1810, and recorded in the records of the said county on the 31st, of August 1810.</p> <p>No. 10 continued. 3d. “To Mr. The President, &c. The humble petition of ,/. II, Nicholson and N F. Williams, merchants of Baltimore, represented by Mr. Benj. Nicholson, nowin this island, represent, Sir, that the brig Hunter sailed from Baltimore, and has arrived and moored in this road, with a cargo, the sale of which has been confided to the care of Silas Marean & C. B. Tuttle. The arrival of the brig Hunter was followed by that of Mr. B. Noland, who says he is the representative of the commercial houses of Messrs. B fy J. ERicott, Andrew EUicott, Thomas Elli-cott, and Qwings 8f Cheslon, of Baltimore. Mr. B. No-land hastened to set up a demand against Mr. Samuel Wright, represented by Mr. Silas Marean and C. B. Tut-tle, in order to have a privilege on the proceeds of the cargo of the aforesaid brig. The means which were resorted to by the Messrs. Ellicotts, &e. were founded on the fact of their having sold the flour composing the cargo to Mr, Wright. A sentence of the court, given the 1 lift of October inst. pronounces thus — “seeing what results from the process verbal of the verification reported concerning the identity of the flour sold by the plaintiffs, with that inspected by the arbiters, the court has condemned, and does condemn, the defendant, Samuel Wright, to pay to the, plaintiffs, Messrs. Ellicotts, &c. in round dollars, the sum of S6794, for the price of the flour which they have sold him, and composing the cargo of the brig Hunter; which sum shall be accounted to them by the Messrs. Tuttle & Marean, out of the proceeds of the sale by them made of the cargo, on the plaintiffs giving to them good and sufficient security that they will return at Baltimore the notes given by said Samuel Wright, for the price of the said flour,” &c. Without entering on the discussion of the means which has induced the court to pronounce thus; without contesting the identity of the flour forming the cargo of the brig with that of the flour sold by Messrs. Ellicotts, &c. or pretended to have been sold by them, we find it inadmissible in the demand which they have set up. The Messrs Ellicotts, &c, had not decided to claim, if they had not believed the the flour'was the property of Mr. Wright, and had never ceased to belong to him. The court, in rendering the sen • tence of the tlth of October, had thought the same; but was all a chimera; in making to cease this illusion, we will make cease the right of Messrs. Ellicotts, &c. We will prove to them that they have no pretence on the cargo of the brig Hunter; that they have not, in a word, any privilege or claim. The cargo of the brig Hunter is not the property of Mr. Samuel Wright. Behold, by this reason, only all the rights of Messrs. Ellicotts, &c. are dissipated — vanished. A deed made at Baltimore, under date of the 24tb August last, between Samuel Wright and the petitioners, has transferred to the petitioners the right, not only of the cargo, but of the brig also. This deed is clothed with all the forms necessary at the time of its being made; it has invested the petitioners with the objects sold Mr. Wright has ceased to be proprietor, and in admitting to Messrs. Ellicotts, &c any right whatsoever to the cargo, this right ceased on the sale and transfer made to the petitioners. They present themselves this day with this deed, sanctioned by the authorities of Baltimore. They come and demand the execution of this deed — They come and claim the property which has been transferred to them. They exercise the right which they certainly have, and which no one contest with them. The' law which the Messrs. Elli-cotts, &c. have no doubt invoked to sustain their demand, is against them; this law does not give them the privilege, but in the case where, the object seized shall be still in the possession of the debtor — shall be still his property. But Mr. Wright is no longer proprietor — He has sold it. The objects are no longer in his possession — He has divested himself of it in order to put it in possession of the purchaser. The former sellers have not then any privilege • — They have no claim on that which is no longer the property of their debtor. If the Messrs. Ellicotts, &c. have yielded their confidence to Mr. Wright, the petitioners cannot be responsible for the consequences — let them address themselves to him to make him pay them the sum he owes them, but let them cease to seek a pledge from the property of the petitioners. Already by a judgment you have authorised the petitioners to seize and stop the cargo in the hands of Mr. Tuttle. You have now only to annul the pretensions of the Messrs. Ellicotts, &c. and this act is easy. The circumstances which militated in favour of the petitioners have been' established; they do not leave any doubt of the legitimacy of their claim. But a sentence of the court has pronounced in favour of the Messis. Ellicotts, &c. a privilege on the property of the petitioners. The court, as we nave already said, has participated in the same mistake with the Messrs. Ellicotts, &c. It thought that the cargo was still the property of Mr. Wright', if has pronounced under this belief. The contrary being demonstrated, it will hasten to correct its judgment, and will render justice to whom it belongs. The means of a third opposr-fion is open to the petitioners; 1,’ney cannot too hastily seize it in order io put the court in a condition to pronounce on. the subject of their claim. Having examined this, will please you to authorise your petitioners to make opposition to the sentence which they make known and declare, to form the. objection to tiie execution of the sentence which was obtained by misrepresentation of the llfii instant, in consequence, permit them to call before the court immediately — -First, the Messrs. Benjamin and James EUicott, &c. merchants of Baltimore, represented by Mr. Benjamin Noland, now in this city, stating himself as acting by ¡heir power of attorney, domiciled at Mr. Pronzat, their attorney. Secondly, Mr. Samuel Wright, represented by-Mr. Silas Marean & C. B. Tuttle, merchants in this city, do-miciliated at Mr. Fillette’s, his attorney, to come, see anti receive, the petitioner’s third opposing to the execution of the sentence — Sec that the said sentence be declared null and without effect, and as if not rendered — See the parties remitted to the same condition in which chey were before the same was rendered, and pronounced by a new judgment; the Messrs. Ellicotts, &c. see themselves declared purely and simply not capable of supporting their demand, the airn of their expectations, at all events unfounded — See themselves nonsuited and condemned in all the expenses; saving and reserving to the petitioners all their rights against Messrs. Marean & Tuttle, to exercise them as they may find them convenient, to obtain the account and the produce of the cargo of the brig Hunter, as being the sole and only proprietors under all reservations, and saving also all other rights, actions and conclusions, which shall be executed, &c. This is justice.</p> <p>Signed Be, Bernard.</p> <p>Seen, &c. recognised the third opposition, and permitted to be summoned to the end requested, commanded, &c. St. Pierres, 16th October 1810.</p> <p>Signed, Jlslorg,</p> <p>Copy Be Bernard.”</p> <p>Here follows a certificate of notification by the constable to Messrs. Ellicotts, &c. of the letter, deed, &c. to appear the 16th October 1810, before the president, &c. “No. 11. Definitive judgment, &c. 16th October 1810.</p> <p>To all present, and to whom these presents shall come, greeting. The court of the first instance, sitting in the city of St. Pierres, Island of Martinique, has rendered the following judgment between Messrs.,/. H, Nicholson & N. F. Williams, merchants at Baltimore, represented by Mr. B. Nicholson, now in this Island, plaintiffs, by a petition answered this day in third opposition to the execution of the sentence of the 11th of this month, appearing by Mr. Be Bernard attorney of the one part, and Messrs. B. & J. Ellicott Sic. merchants of Baltimore, represented in this Island by Mr. B. Noland, under power of attorney, defendants, appearing by Mr, Pronzat attorney of the other part. And also Mr. Samuel Wright, represented in this Island by Mr. Silas Marem & C. B. Tuttle, merchants, and his consignees, appearing by Mr. Villelte, attorney, defendant, summoned to this day, oi the other part. The parties being heard, and the king’s-attorney in his conclusions — The court has taken cognizance of the declaration of Mr. Villelte, that conformably to the instructions which he has received from Mr. Samuel Wright, Mr. Tuttle adheres to the conclusions taken by the plaintiffs.’ Wherefore, the court considering the epoch of the sale of the flour by the Messrs. Ellieotts, &c. and that of the deed consented to by Mr. Wright, for the benefit of Mr. Nicholson, the one on the 15th, and the other on the 24th. Considering that the said deed announces that it is only a deposit for the payment of the notes which have been or may be given by the said Nicholson to Wright, that thus there has been no definitive transfer of the property. Considering besides, the quality of Mr. Nicholson, Relatively to Mr. Wright, that of relationship. Considering. in consequence that the flour has never ceased to be for the benefit of Mr. Tf right, and that the privilege of the reclamation is yielded to the seller, when he finds the merchandise sold in the possession of the purchaser, independently of whatever might result from the failure of Mr. Wright. The court has cast, and does cast, the plaintiffs from the reclamation — condemns them in a fine of 150 li-vres, to be applied according to law; and also in all costs of suit — which shall be executed, notwithstanding any appeal, in giving security, which shall be received before us in the customary way. Commanded and ordered to all constables who are required to put in execution this judgment, and for that purpose are authorised to resort to summonses, intimations, and other acts, which may be necessary when thereto legally required. In testimony whereof, the present judgment has been signed by the president, and by the clerk. St. Pierres, Martinique, Tuesday the 16th of October 1810, in the morning, atan extraordinary audience. Signed on the register, Borde, clerk, and As-torg, president.</p> <p>Coll. Borde.</p> <p>Sealed at St. Pierres, Martinique, the said day.</p> <p>(LS) Le Maistre, Ste. Isle!”</p> <p>Here follows a certificate of notification to Messrs. Nicholson & Williams, S. Wright, and their attornies, and agents, &c.</p> <p>The defendants also proved, by a witness skilled in the French laws, and in the proceedings of the French tribunals, that the said paper is authenticated in the manner used and authorised in the territories and tribunals of F'ance. That the signature ‘‘ Astorg” subscribed to the attestation on the first page of the said paper, is the signature and hand-writing of Jean A mans Astorg, who, at the time when the said attestation bears date, was chief judge or president of the said court, in the attestation and paper mentioned, and that the seal affixed to the attestation in the first page, is precisely similar to the seal used at the time in Gauclaloupe, as the colonial seal of the latter Island; for which reason the witness believed it to be the colonial seal at the time used in Martinique for the authentication of judicial proceedings, and other public acts and pa~ pers; but that he had no knowledge of 1 he colonial seal of Martinique at that time; and that at that time the courts of Martinique had no particular or appropriate seals for their Own proceedings, but used the colonial seal for all purposes when a seal was necessary. The plaintiffs proved by the Said witness, that according to the laws of France, and the constitution and practice of French courts, and of the court of the first, instance at Saint Fierres, in Martinique, no part of the proceedings in any case is lodged with the register of the court, or recorded, except the judgment of the court itself, and such acts as were done by its express order, such as the process verbal, which it ordered to be tnade and returned, and certificates of commissioners appointed by it, to ascertain and report any fact; but that the petitions or claims of the parties, the orders for citation founded on them, the citations made in pursuance of such orders, the answers of the opposite party, the documents produced by either party in support of the claim or de-fence, were considered as the private papers of the parties i espectivcly, and were not lodged in court, or recorded, but remained in the possession of the advocates of the. parties respectively, by whom the originals were produced and certified under their hands, whenever it became necessary to use those papers; and that in such cases the truth or solemnity of those signatures was attested by the president of the court, under the colonial seal. The plaintiffs then objected to the reading of the said papers, or any part thereof, as evidence. -But the court over-ruled the objection, and permitted the paper, and every part thereof, to be read in evidence by the defendants. The plaintiffs excepted.</p> <p>4. The plaintiffs then produced Benjamin Nicholson, the person mentioned in the said paper and proceedings in. Martinique, and offered to swear him as a witness, to prove, that when he went to Martinique to obtain possession, of the cargo of the brig Hunter, he had no authority of any kind, or instructions, from the plaiutiffs, or either of them, to institute any legal proceeding whatever on their behalf in the Island of Martinique, or to appear for them in any such proceeding, or in any court, further than such authority may have been given him in and by a certain letter addressed by Joseph If. Nicholson, one of the plaintiffs, to Silas Marean, of which letter, a paper purporting to be a true copy, is contained in the paper: proceedings aforesaid; and also, that as soon as the proposed witness returned to Baltimore from Martinique, and communicated to the plaintiff, Joseph H. Nicholson, the steps which he the proposed witness had taken about the said cargo in the said court of first instance at Saint Pierres, the said plain-ti~F disapproved those steps and disavowed them. But the defendants objected to this evidence; and the court sustained their objection, and refused to perpuit the evidence to b~ given to the jury. Tbe plainti~ excepted.</p> <p>5. The plaintiffs then prayed the opinion of the conrt, and their direction to tlw jury, that the judgn~ent and pi'o-ceedings in MHrth'iquc do not affect the right of the plain~ tik1~ to recover in this action. And this opinion the court gave. The defepdants excepted. Verdict and judgment for the plaintiffs, for ~80S 40. The plaintifts and defrn-dants both appealed to this court~ but the former after-wards dismissed their appeal.</p> <p>The cause., on the appeal by the defendants, was argued at the last term on theflrst, second, and fifth bills of cx-ceptions, before CHASN, Cli. ~. and BUCHANAN, EARLN, Jonxsox, and MA~TIN, 3.</p> <p>1. On the first bill of exceptions. The court beloff refused to permit the defendants to give in evidence that the money was received in pursuance of a decree of the court of Martinique~ The evidence was offered to show, tl~at the money was so received that assumpsit would not lie for it. It was not intended to prove the record or the judgment by the admission of the evidence; but it came in incidentally, and it was not necessary to produce the judgment under which the money was received. If the witness was competent to prove he received the money, be was competent to prove from whom and on what account he received it. It was, anti may be ii~iportant for the defendants to prove, that the money was paid under judicial process; and if they could have been permitted to give such proof, then the plaintift~ would have been bound to produce the iud~ment. and to urove it to have been erroneous.</p> <p>~. On the second bill of exceptions. The court below referred a question of law to the jury. On the Q4th of August 1810, T'T~'right being insolvent, and unable to pay his debts, made an assignment of his property to the plain~~ tift~. They referred to the act of 1805, ch. 110, a 9, which declares, that any conveyance made to any one by an insolvent debtor, is an undue and improper preference; and the act of 1807. cli. 55, which declares what shall be an undue and improper preference. Manno vs. Gillings & Smith, I Harr. ~Joh7~s. 492. If ?t was ~ns(ilveot on the 24th of August 18lO~ the deed was not effectual, and the plaintiffs cannot support this action. It was giving an trndue and improper preference to some of his creditors. It was unequitable and unjust, ~nd a fraud as to other creditors. If the plaihfiiTh are not entitled to recover equitably and fairly against the th~fendar~ts, they cannot support this action. Th~ agent of Wright paid the moi~ey vehu~tariJy to the agent o~ the defendantr, on a full disclosure of all circumstances, ami the plaintiffs have no right to call on them to refund. An agent is answcra-ble to his principal, so that if the payment was not pi o-petty made, the agent is answerable to Wright, or his assignees. It is not stated that the property was seized by the defendants, nor that Tuttle did not pay the money voluntarily. If the property was seized, it was done legally. But the payment was made when there was no legal authority compelling Tuttle to pay the money. No matter whether the money was received by the defendants as a voluntary payment made by the agent, or under a judgment of a proper tribunal, the plaintiffs cannot recover it back in this form of action, it cannot be said that the defendants received the, money for the use of the plaintiffs. It was received in opposition to a claim set up by them against the defendants. How then can it be said to be received for their use? Will it be said that the assignees under their assignment, which was made in violation of the policy of the insolvent law, can recover against persons who liad an equitable claim? The deed to the plaintiffs is in express contravention of the laws of this state, and shall the assignees under it recover of the defendants money received legally by them for a valuable claim? The deed is also void under the act of 1729, ch. 8, s. 5, prohibiting secret sales. This law is confined to property in the state, and could not affect, any property not within its limits and jurisdiction. The lex loci must prevail as to personal property. De Sobry vs. Terrier, 2 Harr, tk Johns. 224. Deeds and wills of personal property must be according to the laws of the place where the property is situated. Such a deed might be enforced in another country, where there was no equitable claim to the property in another person. Hunter vs Potts, 4 T. E. 182. Sill vs. IPorswick, 1 II. BJc. 665. The reason why the assignment in the cases cited extended, to another country, is given in the cases under an act of parliament extending it. Can it be said that the defendants are parties to the deed? It may be said that they have, as citizens of the state, given their assent to the insolvent law. Such a deed as this would, in England, be void as being against the bankrupt law. It should be so here, being- expressly contrary to our insolvent, law — being a fraudulent act as it relates to the creditors. It would be using the court as an instrument to sanction that which the law expressly declares to be improper. Goods purchased and not paid for, may be seized where the purchaser is insolvent, notwithstanding he ad assigned them, to defraud the creditor, for a valuable consideration. They may be stopped in transi-tu to pay the seller, notwithstanding bis debt is not due. It arises on the high principle of equity, that a man who has sold property, and the purchaser becomes insolvent, shall take his property back, where he has not been paid, and notwithstanding his deb* is not due. The claim is fair and honest. The rigid rule of law is to bend to the' equity of such claim. The assignment to the plaintiff's covered all the debtor’s property, notwithstanding it professes to say the surplus was to go to the general creditors. The schedule shows, that the whole property would not be more than sufficient to pay the debt to the plaintiffs. They cannot recover unless they have a superior equity.</p> <p>3. On the fifth bill of exceptions. 1. The record of the judgment in Martinique was admitted in evidence by the court below, as stated in the third bill of exceptions, (taken by the plaintiffs and not now before this court,) but the court below said it did not affect the plaintiffs’ right to recover. They cannot say the evidence was'inadmissible, because, on their bills of exceptions, this .court is not to decide. The questions arising on that record are — 1. Whether or not the decree therein mentioned is conclusive? If it is not conclusive, 2. How far it operates? And if it operates at all, 3. How far the plaintiffs have shown •matter to avoid the prima facie operation of it? The judgment given by the court in Martinique is correct, and was properly given on the facts in the case. Those facts are correctly stated in the material parts, in the petition of Noland, the agent of the defendants. If Wright was guilty of fraud, the plaintiffs ave affected by it, and answerable for it so far as the defendants are interested. The court at Martinique condemned the property for the benefit of the present defendants, on the proceedings as they then stood before the arrival of the agent of the plaintiffs. When he arrived, he instituted a proceeding familiar in those courts, called a third opposition to the sentence before pronounced by the court. The agent was properly authorised to act for the plaintiffs; if he was not, for what purpose was he sent? lie was sent to repel all proceedings which the defendants might institute for having their claim paid out of the cargo. The judge at Martinique recog-nised the agent, and the court were called upon to review their former decision, which they did, and decided definitively on the question in favour of these defendants, having before them all persons concerned, who were the present plaintiffs and defendants. If Wright was guilty of a fraud in the purchase of the flour' from the defendants, the court in Martinique gave the same judgment which the court here would have given. That court had jurisdiction of the case. The property was there, and their laws had a control over it; and the court had a right to draw the conclusion from the facts, that Wright had been guilty of a fraud — that court having a right to judge on the law and the fact. The plaintiffs are not considered as aiding, or having any knowledge of the fraud; but if Wright was guilty of a fraud, it will affect their right to recover. • Allison vs. Matthieu, 3 Johns. Rep. 235. It was not an ordinary commercial transaction, but was manifestly a case of fraud; if it was not, how could the court in Martinique decide as it did? The plaintiffs were mere trustees, to indemnify themselves for notes endorsed — it was a resulting trust for any residue. Under the deed of assignment to them, they stood in the place of Wright. They did not take as purchasers, but they took the perty subject to ail claims. The property was never divested out of the defendants, there being a fraud practised on them by Wright, it was not a fair commercial transaction; but it is evident that fraud was intended — 'the purchase having been made with a view to bankruptcy. If the facts had been submitted to a jury of this country, the pmperiy would have been recovered by the defendants, from Wright’s trustees. The court in Martinique was invested with cognizance of the case, and perfectly competent to decide. Suppose the property had not been shipped, and an action of trover had been brought by the defendants, would not the jury be bound to draw the legal conclusion, that there was fraud; and if there v.as fraud in Wright, it is equally so in his trustees or assignees. This court would have drawn the same conclusion from the facts, which the court in Martinique did; and the same decision has taken place there, which would have taken place here, had the question been brought before a legal tribunal in this state. Winchester, et al. vs, Brooke, 2 Harr. & Johns. 1. The consignees oí Wright were equally the consignees of the plaintiffs. The proceedings in Martinique is a proceeding in rem. Every person who eould be, were made parties. Wright and his assignees were as much parties as they could bo in the case oí that kind, or as they would be here on a foreign attachment, tf that court had acted upon the laws of this state, it could not have given a different decision — acting upon the civil law, or the law of nations, they could not have decided otherwise. 2. Whether that court had a right to draw the legal conclusion that there was fraud, is not for this court to decide, unless they undertake to constitute themselves a court of review, which it is contended they cannot do, but that they are concluded by the judgment which was given by the court in Martinique.</p> <p>On this question they cited Hughes vs. Cornelius, Sir T. Raym. 473. S. C. 2 Show. 232. Beak vs. Tyrrell, Carthew, 32. Green vs. Wallen, 2 Ld. Raym. 893. Ewer vs. Jones, lb. 935. 12 Vin. Mb. 87. 1 Marsh, onlnsur. 388, 390, 392, 393, 394, 398, 399, 401, 403, 404. The Christophci, 2 Rob. Mm. Rep. 210, (note.) Oddyvs. Bo ° mil, 2 East, 473. Smith vs. Surridge, 4 Esp. Rep. 25. Eernardi vs. Motieux, Dougl. 581. Stodder vs Dunlop, 2 Harr. Ent. 490. Rose vs. Himely, 4 Crunch, 276. Hudson vs. Guesfier, Ibid 294. Croudson vs. Leonard, Ibid 434, 438. Fitzsimmons vs. The Newport Insurance Company. Ibid 186, 197. There can be no question but that admiralty sentences, from the year 1682 to the present lime, have been held conclusive. Lord Kenyon says, in Walker vs. Witter, Dougl. 1, (note,) that he knows no reason why the judgments of all foreign courts are not evidence, as well as of admiralty courts. They contended, that the case of Burrows vs. Jemino, 2 Stra. 755, went the whole length of that before the court. In Cooke’s Bank Lawsf cited in Sill vs. Worswiclc, 1 II. Blk. Rep 668. the case was abandoned upon the force of the authorities cited’. In Rapalje vs. Emory, % Dal!. Rep. 51, 231, the decisions referred to were recognized. But it will be said that later decisions are against the principle contended for on the . part of the appellants; that in Hunter vs. Potts, 4 T. R. 182, 192, the money was directed to be refunded, notwithstanding the decision of a foreign court This decision went upon the bankrupt laws, where both parties were English subjects, and were bound to know those laws — - their assent to them was inferred. Sill vs. Worswiek, 1 H. Blk. 665, was decided on the same principle, of the parties being bound by the bankrupt laws of their own country, and refers to Le Chevalier vs., Lynch, 1 Dougl. 170. In Walker vs. Witter, 1 Dougl. 1, there is a class of oases in the notes, making the decision of a foreign courtpri-mafacie evidence of its correctness, so as to found a claim thereon to enforce it in a court in Great Britain. In Maley vs. Shuttick, 3 Cranch, 488, it was held, that the judgment of a foreign court was evidence' of its own correctness. There was nothing to impugn the decision of the court in Martinique, which declared (hat the property was liable to the claim of the present defendants. It was a’court of competent authority. Every thing was before the court, and the agent of the plaintiffs-was contesting the case, so ■ that it was between the present parties. There is no case which says that a-decision between the same parties before a court of competent jurisdiction, is not conclusive. It might be questioned-where it was not between the same parties. Were it not conclusive, when between the same parties, there would be no end to litigation. The decision of the court of Martinique strengthens the equitable claim of the defendants. What is the effect of a judgment rendered in a domestic tribunal as contrasted^ with a municipal tribunal? They are conclusive between tfie same parties in all other jurisdictions. Bull.'JV. P. 244. 1 Peake’s Evtd. 75. Blackham’s, case, 1 Salk. 290. Harper vs. Carr, 7 T. R. 270. Contee vs. Cooke, 2 Harr. & Johns. 179. Where the judgment of a foreign , court is to be carried into effect, it is-different. For instance, where a suit is brought upon a foreign judgment, the court here must be satisfied that it is correct, but it is prima facie evidence of the debt. In the case before the court, the judgment was executed— it 'was at an end, the money having been paid under it; but the plaintiffs come here and claim, to have the money.' paid'under the judgment refunded, and paid to them. Before that is done they must show gome authority for it, before this court will decide that the judgment is incorrect, ' and that the money paid under it shall be returned. Where a judgment is executed, there is an end of the subject upon-which it was given. All the authorities go to establish the •principle, that where a courtis called on to carry into ef-feet a judgment of a foreign state, it would not, until late-!j, do so; but owing to the peculiar situation of our union, a judgment in one state is conclusive evidence in every other state. There is a uniform system of decisions pervading the commercial world; and a judgment in one court of admiralty is respected in another. That court professes to act upon the law of nations; but in many cases they do not do so, and there have been many complaints upon the subject. Even Sir William Scott acts upon the local laws of his own government instead of acting upon the laws of nations- The judgments of such courts are respected; and if so, there is a greater reason to respect the municipal decisions of the country. Although this is not a decision of a British court of King’s Bench, yet it is a decision of a municipal tribunal. There is a distinction between the judgment of a municipal court which has been executed, and where it has not been executed; and there is a wide distinction where the judgment of a foreign court is brought in collaterally, and where it is brought directly before the court. In Rupaljc vs. Emory, % Dali. Rep. 51, 231, the court decided, that the decision of (he court of St. Eusta-iia was right; but that whether right or wrong, the judgment was conclusive. In Philips vs. Hunter, 2 h. Elk. Rep. 402, an attempt was made to obtain a preference out of bankrupt’s property. The court said, that the judgment of the court in Pennsylvania must be taken to be binding between the parties to the suit in the foreign country. The ^opinion of Eyre, Ch. J. shows the trueground of the decision, which was, that the court could nit examine into a judgment of a foreign country, when brought before the court collaterally; but that when the judgment was to be enforced, it is examinable. Where the money is paid under'a judgment in a foreign country, it cannot be recovered back in the court of any other country. The authorities cited all show this to be the case, except cases arising under the bankrupt laws of Great Britain, and between its subjects. If tne judgment in Martinique was not conclusive, it was prtma facie evidence of the judgment recovered, and the court below have said it “does not affect the plaintiffs’ right to recover.” Why did it not affect their right to recover? Was it not prima facie evidence of the debt recovered? The court permitted it to go to the jury, and then directed them that it was not to affect the plaintiffs’ case; that it had no force, validity or effect. Why permit it to go to the jury if it was to have no effect? Can this court sanction such a decision? If the judgment offered in evidence was correct, then there is an end of the case, and the judgment of the court below must be reversed.</p> <p>1. On the first bill of exceptions. An attempt was made by the defendants below, to prove that the money was received by their agent, under a judgment of a foreign court, without producing thejudgment. Here was an attempt then to prove a judgment by parol. Can such proof be admitted? The rule of law is, that you cannot give parol evidence of a written paper, more especially of a record. The evidence offered to be given by Mr.. 8te.re.tl was mere hearsay, and was not suffi-ent to let in the evidence offered by the defendants, to prove that Tuttle paid the money to Noland under a judgment. Whether the money was received in pursuance of the judgment, is to say that the judgment existed. Could it be evidence of the judgment, when the judgment, if any, might be produced? The witness might be mistaken, and-the judgment was the best evidence.</p> <p>2. On the second bill of exceptions. The objection to the opinion given by the court below on the statement in this exception, is that the court referred a question of law to the jury. The prayer was, that if the jury believed the facts stated, then the plaintiffs were entitled to recover. -The consequence in point of law was, that if the jury found the facts, then the plaintiffs were entitled to recover. The legal conclusion was to be drawn from the facts being found to be true. But it has been said that this is an equitable action, and that the plaintiffs cannot recover, their claim being an inequitable one. That- Wright made the assignment to defeat his creditors, giving an undue and improper preference, which our insolvent laws will not suffer. That the assignment was» fraudulent; and yet evidence was given, that when he purchased the flour he was in good credit, and that the purchase was made solely for the purposes of general trade. There was surplus flour returned to the defendants, and this shows that no fraud was intended. There was no fraud, or the want of equity existing, to prevent a recovery by the plaintiffs. If a legal right was shown for the money, then the action will lie. There was not an undue and improper preference. The act of 1807, ch. 55, speaks of an undue and improper preference, and that it should be void. Does the act refer to the bankrupt laws as a system? It must refer to the common law. It was not an improper preference in equity. Under our laws a debtor may prefer one creditor to another. Under the bankrupt law, while it existed, such an assignment would not have been decided to be an undue and improper preference, and therefore void, Ml Mechen vs. Grundy & Thornburgh’s Lessee, 5 Harr. & Johns. 185, The insolvent laws do not say the deed, giving an undue and improper preference, shall be void, but that the party making it should not be entitled to the benefit of the law. It is not true that an action cannot be supported for an equitable demand; and if were true, it is not true that the preference here given makes the deed void, and the demand inequitable. But here the question must depend upon the general law, and not upon the insolvent laws. There was a special insolvent law in favour of If right, and his case was extracted from the ge» iieral insolvent law. The general system of our insolvent law, if taken into view, will be found to be this, that if there has been an undue and improper preference, the petitioner shall not be discharged. What is an undue and improper preference under the act of 1805, eh. 110, that law does not determine. But it is said, that the act of 1807, c/f. 55, does. This last act has nothing to do with the case. The special law, in favour of Wright, refers the question to the general or common law, not to the insolvent law system of the state. It comes under the general and legal principle, whether it is an undue and improper preference to secure a surety. There is no general system of insolvent law which stands in the way but the act of 1774, ch. 28, and that act does not. This is not a case falling under the insolvent laws. It is a special law of its own. There is no general system of insolvent laws, and nothing to which the court can look, but to the genera! law ot the land. If there was a general insolvent system, this case would not come under it, there being here a special law in Wright's favour. But it has been said, that the plaintiffs were mere trustees for ff right, and that the case is to be considered as if between him and the defendants. They are trustees, but for whose benefit? Not for the benefit of Wright, but for themselves; and they are the owners in law and equity. They are as much the owners of the property as it no trusts had been stated in the deed from Wright to them. The liabilities had been incurred by them, and only a few days had to elapse before toe notes would fall due. They paid the notes before the proceedings were commenced in Martinique, and when the decision took place, they were interested as purchasers for a valuable consideration. This cannot be called a trust estate. There was an eventual interest in Wright, but the whole property was inadequate to the indemnity of the plaintiffs. There is nothing to distinguish this from the ordinary case for a transfer of a valuable consideration. There was no lingering equity remaining in Wright. The spirit of the deed was, that the plaintiffs were to have absolute control of the property. How were they to get indemnity, unless, they had such control, provided the deed was upon such a consideration which the law will sanction? Here was a proper consideration — sureties to be indemnified. There is no transaction which the law will sanction sooner than this. The law does not condemn it. The commerce of the country depends upon a wide spread credit. How is credit to be obtained unless there is security? The law will allow that he who gives his aid to credit shall be secured, where no interest is asked for his security ship. He asks indemnity, and shall he be refused? Is it not for the public good that the surety shall be indemnified? That when the principal is tottering upon the verge of ruin, he may step forward and secure him who had pledged his fortune in his behalf? It is the first axiom in commercial transactions. The law will justify the making the indemnify. Will the postponing it to the last moment make any difference? The principal is bound to indemnify; and when a man becomes a surety for another, the principal is bound, and engages at the time, to indemnify him to the extent of his resources. Sureties in every case should be protected, where there is nothing, in the case which stains it with impurity. Here nothing of the kind is attempted to be shown. Our insolvent law is as hifting and changeable system — it is one thing to day, and another to-morrow. There is no uniform system in it. Resort must be had .to what was th'e system before.</p> <p>On the second and fifth ^bills of exceptions. 1. How did the case stand at the time institution of the proceedings in Martinique? At the time of the commencement of those proceedings, and independently of the judgment, the plaintiffs had a right to recover, 1st. Under the assignment of the bill of lading. A bill of lading is assignable in its nature, and by endorsement the property is vested in the assignee. It is clearly settled, that goods at sea may be so assigned. Evans vs. Mar-left, 1 Ld. Raym, 271. Wright vs. Campbell, 4 Burr. 2051. Caldwell vs. .Ball, 1 T.R. 216. Lickbarrow vs. Mason, 2 T. R. 74. 5 S. C. T. R. 683. Haille vs. Smith, T Bos. 4" Pull. 569. Newson vs. Thornton, 6 East, 20, 27. Upon this principle the property of the goods at sea is held by the possession ofthe-bill of lading, and the legal interest of the property is immediately transferred from the owner to the assignee of the consignee, (a fortiori to his own assignee.) Pow. on Mortg. 35, 36. In this case Wright, the -vendee, represents the consignee for value in the cases cited. His consignee was merely a factor for sales and returns, and as consignor and owner he retained power and right to transfer to the plaintiffs. 2d. Under the deed from Wright to them of the 24th of August 1810, which was duly acknowledged" and recorded. The consideration was a valuable one, and as meritorious as it could be. Lempriere vs. Pasley, 2 T. R. 485. 3 Bac. Jib. 310. Twines case, 3 Coke, 80. United States vs. Uooe, 3 Cranch, 88. Pow. on Mortg. 41, 42. Coxe vs. Harden, 4 East, 212,217. 5 Bac. Jib. tit .Mortgage, 52, cites Plumb vs. Fluilt, 2 Jlnstr. 432.</p> <p>2. What were the defendants rights at law? Having sold ¿nd delivered the flour, it is impossible that they could have more than two rights at law, supposing no fraud in Wright, or even if there was, 1st. Of stopping in transitu, which affects the thing specifically. 2d. Of attaching for the debt, as any other creditor might do. . I. They had not the right of stopping in transitu. At common law their property was gone by a constructive delivery, and they were reduced to general creditors. The right of stopping in transitu was transferred from equity to law. It took its rise with the case of Snee vs. Prescott, 1 JUk. 245, by Lord Hardwicke, and is an equitable specific lien upon the thing of which the property has passed by another, and goes as far at law as at equity. It exists only in the case of the insolvency of the vendee. It never does or can exist after actual delivery to the vendee or consignee. It is an ambulatory right, which follows the property in its transit from the vendor to the vendee or consignee, and then ceases forever. Constructive delivery, (which may be sufficient to alter the property,) does not interfere with it. Actual delivery extinguishes it. Now in this case there .was actual delivery to Wright in Baltimore, and of course the right of stopping in transitu is a chimera. There was no transit to Wright in the case. The only material transit was from the vendors to Wright. The subsequent transit to Martinique was from Wright, not to him. Abbott, 352, 358. 6 Bob. Jidm. Bep. 326. Ellis vs. Hunt, 3 T. B. 464. Leeds'vs. Wright, 3 Bos. & Pull, 320. Coxe vs. Harden, 4 East, 217. The right of the vendor to stop in Iransttu, in case of the insolvency of the vendee, was a kind of equitable lien adopted by the law, for the purposes of substantial justice, and does not proceed on the ground of rescinding the contract. Hodg-son vs. Loy, 7 T. B. 441. Salomons vs. Nissen, 2 T. B. 679. IAckbarrow vs. Mason, Ibid 70, 75, 683. There was no right, therefore, of stopping in transdu, upon which it is observable the court in Martinique proceeded. 2. The other legal right at the time of the commencement of the proceeding in Martinique, was of attaching as a creditor. But that right could not exist for two reasons — 1st. The debt was not due. 2d. The property was altered before the defendants proceeded. It belonged to the plaintiffs; and moreover the court at Martinique did not decide upon this ground. The defendants had no legal right of any kind therefore, when they commenced their proceeding in Martinique. 1. They had not any property in the flour, for they had sold and delivered it to Wright. % They had not the right of revendication or stopping in tran-situ, because of the actual delivery and possession, independently of the right of the plaintiffs. 3. They had not a right to attach, because their debt was not due, and because the property was passed to third persons.</p> <p>3. What was the comparative equity at the same epoch, that is, at the commencement ot the proceedings in Martinique? 1. As to the general equity. The plaintiffs’ is that of a security, the defendants’ of a creditor, who sold upon a long credit for profit, or with the expectation of profit. The thing sold is that which they attempt to affect for the purchase money; but that thing had become a portion of the mass of Wright's property, and they had taken a security, or note of hand, at 85 days, in lieu of it, and had thus become, and intended to become, mere general creditors. The,general equity is at least equal. A security is always favoured in equity, and chancery will never raise an equity against him. which the law, strictly taken, does sot raise. If a security in a joint bond dies, and the stir-viving obligor-becomes insolvent, the bond cannot beset up against the security’s property in equity, although it C0U1<J* be done against any other joint obligor. If there is any moral obligation which presses more than another upon a trader, it is to indemnify his securities, at least there can be none superior to it A security becomes so from mere friendship, without hope.of profit. He risks himself without the chance or expectation of equivalent, and oftentimes at the imminent hazard of run. The whole fabric of our commerce has depended upon security ships, bank negotiations, &c. and it is the fixed idea in the commercial world, that a. man cannot do too much for indemnifying his securities. It is in fact the consideration, and the only one, which is paid for securityship. On the other hand the defendants sold for profit; they were not led by friendship, but influenced by calculation. What peculiar favour are they entitled to against those who had slaked their whole fortunes, and the prosperity of their families, upon the success of Wright? There can be no impeachment of the defendants that they expected profit; but it is a reason why they have no moral claims above the plaintiffs. The property had been theirs indeed — -but what then? It was theirs no longer — they had made it as much Wright's as any other of his goods; and had chosen to rely on his personal credit and solvency. The general equity is therefore at least equal. Now what specific equity had the defendants? It has been said that they had an equitable lien beyond the right of stopping in transitu. 1. All the cases upon the right of stopping in transitu, show clearly that it is the ne plus ultra of equity, as well as of law The chancery cases do not go beyond it; Snee vs. Prescott, 1 Jilk. 245, did not. Suppose, however, that by analogy to the doctrine of lien for the fiurchase money in the case of real estates, this lien exists. t may be answered, 1. Even in the case of real estates, the lien, by implication, does not exist, where upon the contract it evidently was «oí intended to be reserved. Justin vs. Halsey, 6 Ves. 481. Now here it was not intended to be reserved: for a note of hand is taken loilh a long credit, and a knowledge that the goods wrre intended to be sent out of reach. Arid it has in one case, (Fawell vs. Healis, Jhnbl. 724. S. C. Dickins, 485, determined in 3773,) been decided, that in the case of the sale of real es-fate, if the vendor parts with it, and takes a bond for 'the purchase money, he has no lien against the general creditors of the vendee. There is no case that overrules this. The case of Nairn, vs. Prowse, 6 Ves. 759, does not affect it; for the masler of the rolls decided no more than the case required, that is, that the taking a security did take away the lien by implication. The case of Pollexfen vs, Moore, 3 Jtk. 273, was that of an agreement to purchase merely. 5 Vin Jib. (supp.) 180. 2. But at any rate there is no Hen by implication against a-holder for value, without notice of the equity. All the books agree to this, end it would be nonsense and iniquity if it were otherwise. A vendor has a lien for the purchase money while the estate is in the hands of the vendee; that is, general creditors. Austen vs. Halsey, 6 Ves. 480. Now the plaintiffs were holders for value, (upon a consideration the most meritorious,) without notice of the defendants' tquity. There is no notice stated in the bills of exceptions, and de non apparentibus et non existentibus eadem est ratio. They must show notice if they mean to stand against a legal title upon a claim merely equitable. This is so at equity. Even, therefore, if real estate, this idea of lien, beyond the right of stopping in transitu, could not be countenanced. But the doctrine, as it applies to real estates, has nothing to do with this case, which is of personalty. There is no adjudication or dictum to be produced which looks that way. Cases of stopping in transitu profess to exhaust the equitable doctrine as it applies to personal things; and Ex parte Gwynne, 12 Ves. 383, proves that to Lbe so. And besides, the cases of stopping in transitu show, that even while the goods are in transitu, if they are transferred by the consignee or vendee to a third person for valuable consideration, (especially if without notice of the equity,) the right to stop in transitu is gone. This while in transitu; for after they reach the vendee or consignee, there is no right of revendication at all — -there is no lien of any kind at law, nor in equity. It results, that the plaintiffs and defendants were in equal equity; and that so being in equal equity, the plaintiffs obtained the title at law — thus uniting law and equity. It results again, as will be shown, that unless the judicial sentence in Martinique is competent to prevent it, the plaintiffs are entitled to recover, in this form of action, the money which belonged to them, which the defendants got into their possession under pretence of title. There are only two possible objections — l. That in this form of action the plaintiffs can recover only upon equitable principles. 2. That there was no privity — the money having been received under an adversary title. 1st. As to equitable principles. The rule in chancery is, that where the equity is equal, he who has the law shall prevail. Per Lord Chancellor Cowper, in Oswicke vs. Plumer, 5 Bac. Ab.41, 42, Ver Ashurst,}. in Caldwell vs. Ball, 1 71 It. 241. Nay, where one equi», ty is prior to the other, but in other respects equal, the last equity shall prevail if it becomes united to a legal title, against the maxim tiqni prior est in tempore potior est in jure.'’'’ Thus where the second mortgagee purchases in (even with notice of the first mortgage,) an incumbrance anterior to the first mortgage, he shall overreach the first mortgage in equity. 5 Bac. Ab. 55, 56. Nay, where it is only a general equity against a specific equity, if, without notice of the specific eqmty, the other party gets a title at law, he shall prevail against the specific equity. Thus — «‘‘although a deposit of title deed® amounts to an equitable mortgage,-yet if a creditor of the. mortgagor, fearing his immediate insolvency, take a conVeyance of the same estate without notice of the incum-equity will not prevent him from availing himself of his legal estate.” 5 Bac. Ab. 53. Plumb vs. Fluitt, 2 Ansi. 432. So that even if the defendants had a specific equity, since the plaintiffs as securities, (stronger than the case of a mere creditor,) got the legal title without notice of their equity, it would not be repugnant to equitable principles that they should be allowed to have the benefit of-their legal title. The defendants, however, had no specific equity. They had no equity superior to that of the plaintiffs, who have united the law to their equity. Again —Where there is no peculiar equity on either side, the strict law shall entitle the plaintiffs to a verdict. De Hayn vs. Hartley, l T. R. 343. There is no necessity, therefore, that there should be any peculiar equity with the plaintiffs. It is sufficientif the law is with them, and the claim is not condemned by conscience and honesty, l^ere it is not so condemned. 2. The want of privity. The rule is, “in an action for money had and received the receipt shall be always deemed to enure to the use of him who hath the right, even though it be taken under an adverse titlej as for instance, when this species of action is brought to try the title of an office. ” Philips vs. Hunter, 2 H. Blk.Rep. 408. 1 Vin. Ab. 268, (N. 2,)pl 1, 2. Howard vs. Hood, 2 Show. 21,24. Tettenhan vs Bedingfield, 3 Leon. 24. Arris vs. Stukets, 2 Mod. 360. 1 Vin. Ab. (Supp.) 99, (N. 2.) pi. 2, 4; 103, pi 10. Thomas vs. Whip, Bull. N. P. 130. Hern vs. Nichols, 1 Salk. 289. Bull. N. P. 35. 2 Com. on Cont. 44. Moses vs. Macferlan, 2 Burr. 1009. Sstley vs. Reynolds, 2 Stra. 915. The King vs. The Bishop of Chester, 1. T. R. 403, 399, (and note.) 1 Bac. Ab. 260. Jacobs vs. Allen, I Salk 27. 1 Vin. Ab. 263, (N) pi. 2.</p> <p>4. We come now to consider the effect of the judicial proceeding in Martinique. Has it any, and what effect, upon the right of the plaintiffs to recover? The defendants set it up as a flat bar. They say it has decided the matter of the present controversy, and that the plaintiffs cannot recover against a judicial decision, even though a for reign decision .We say it is no more than prima facie evidence, and scarcely that. 1. In strictness, the courts of one country are not in any degree bound by the judgments of the courts of another. This is the result of their independence and sovereignty, as well with regard to judicial, as to executive and legislative acts. If they are bound by the judicial acts, they are bound by the legislative acts; for the judiciary does but expound, apply, and enforce the legislative will. Lord Kaime's Pr. of Eq. 374. But co~ mity has in England given to them a qualified binding force of considerable extent. And here it ought to be ob-' served, that in Scotland, in France, and the other nations of Europe, no such comity exists. Ibid. In France a judgment rendered in this country would not be received as conclusive, and in Martinique it would not. And are we ro take theirs as conclusive upon notions of comity, which are not reciprocal? Comity, however, has never in England made such a judgment as this conclusive. The general doctrine shall be shown bye and bye, at present the peculiar reasons will be given why this proceeding cannot affect the plaintiffs — 1. The plaintiffs were no parties to it. By the record it appears that the. vessel and cargo were seized on the 6th of October 1810, by an order of the 5th, at the instance of the defendants, and others. Their petition statiug their right and claim, &c. on the 9th, and a final judgment in their favour on the 11th. Upon this judgment the defendants now stand; under it they received the money. There was no new judgment pronounced. This is obvious from the sentence of the 11th and that of the 16th. B. Nicholson arrived after the first judgment. He had no choice but to remonstrate and ask a revision, &e. and he did so; but the court refused to annul it; and so it was executed. If he had not remonstrated, the judgment would have been executed, and his remonstrance produced no change. This did not make the plaintiffs parties to a judgment which had been passed before their agent arrived. A foreign judgment cannot have greater force than a domestic judgment of a court not of record; and such a judgment does not generally bind those who are not parties. 1. Decrees of the couK of chancery 2. E clesiastical courts. In the Dutchess of Kingston’s case, 11 St. Tr. 243, a sentence or jactitation of marriage was not conclusive, because it was offered against other parties, (in a prosecution for bigamy,) alsoper fraudan. The maxim of law is, “res inter alios acta tertius necnocel nee prodest.” It would be monstrous if it were otherwise. It may be said that admiralty sentences, in cases of prize, show the contrary. This is upon the presumption that all the world are parlies to prize causes; and it fortifies wbat is contended for on the part of the plaintiffs. Croudson VS. Leonard, 4 Crunch, 437. But the conclusiveness of admiralty'sentences, (in personam as well as in rent,) is an anomaly now almost universally condemned. In Lothian vs. Henderson, 3 Bos. & Pull. 499, which went up to the House of Lords, and in which all the judges delivered their opinions seriatem, it appears that almost all of them condemned the doctrine, although they considered themselves bound by positive decisions to adhere to it; and Baron Grahame gave his opinion against it. In Fisher v. Ogle, 1 Gampb. 418. Park, 494, 6, 7, and 1 Marsh. 435, Lord Ellenborough calls it an overstrained comity; and in Donaldson vs. 7’hompson, 1 Campb. 429, l Marsh. 435, he says, 4‘I am by no means disposed to extend the comity which has been shown to these sentences of foreign admiralty courts. I shall die, like Lord Thu/rlow, in the belief that they ought never to have been admitted. Th« doctrine in their favour rests upon, an authority of Hughs v. Cornelius, % Showers, 232, which does not fully support it, and the practice of receiving them often leads to the greatest injustice.” In the United States, some of the state have rejected the doctrine; and such as have admit-te'd it, have relied upon grounds peculiar to admiralty sentences, and have reluctantly received it after all. However this may be, the reason of the doctrine maintains the objection that the plaintiffs, not being parties to the judgment at Martinique, under which the defendants claim, they are not bound by it: In truth, with reference to the personal rights of'Maryland, citizens out of the jurisdiction of the court, the court had no jurisdiction, (except as they might be affected by jurisdiction over the thing.) Even Lord Kenyon■ admits this in his remarks on Lord Hard-wickeds observations about the Welch decree. Gal-hraith vs. Neville, 1 Dougl. 6,' (note). And in the latter part of his opinion he says, the foreign courts must have corapot&at jurisdiction. Now here the court in Martinique had none over the' plaintiffs, and therefore could not affect their rights. And here may interpose a short inquiry.' The rights were personal, and the court of Martinique had no jurisdiction over their persons. It might do as it pleased with the thing while in its power; but the rights and interest in the American proprietors, it could not reach, because they were not in its power or amenable to it. The thing being in Martinique, it could act upon ;it and bind it by a proceeding in rem, so as to protect purchasers, and force the proceeds into whose hands it thought fit. But there the power stopped. The reciprocal rights and obligations of the present plaintiffs and defendants remained as they were; for the judgment could not act in per-sonam — the parties not being amenable to the jurisdiction. The judgment, therefore, produced the effect of putting the money into the hands of the defendants by means of power over the thing; but having accomplished that result, the conflict between the personal rights of the plaintiffs and defendants passes ad aliud examen, and falls again (where indeed it always was,) under the jurisdiction of the law of this state, which created, defined and regulated them. .In a word, the judgment did all that power over the thing enabled it to do. It could do nothing to change the relative personal claims of the plaintiffs and defendants, because it had no jurisdiction over the persons in whom those claims inhered. 2. But even supposing they were parties in form, can comity bind this court to shut its eyes to the substance of the fact? Was B. Nicholson authorised to make the plaintiffs'parties? Look at his authority, as recorded in the proceeding. Nothing of the sort was intended Or thought of. His business lay with the consignee or factor, and he could anticipate no dispute with him. He had the assignment of the bill of lading, and letters to Ma-rean, &c. But moieover, look at the rapidity with which ‘ this proceeding went' on. In two days after- filing the petition by the defendants, judgment was pronounced. In four days after, B, Nicholson entered his remonstrance; his remonstrance is overruled. He arrives on the 11th , and is compelled immediately to remonstrate, and in four days is dismissed, and with a line. They were not a party to any purpose. S. But the great objection is, that the judgmentwp-on theface of it, is manifestly unfit to he adopted as conclusive, and that consistently with it the present plaintiffs may recover. Either thisjudgmentis in the nature of a judgment on attachment, or it is founded upon the right of revendi-cation before spoken of, as belonging to the vendeur primi-tif. It is expressly said to be the last of these upon the face of the proceeding itself, and so we must take it to be. If it had been the first, it had been palpably unjust, since the property appeared to be vested in the plaintiffs, and the note to the defendants was not due. Now we have already seen, that by thelaw of this state the veñdeur primiiif had no ¡Ten — no right of revendication. That the delivery to, and possession of Wright, had taken them away, and that the property, having passed to the plaintiffs for value, there could he no pretence for lien or revendi-cation, even if the goods wera tn transitu, as they were not. Let us now inquire then — 1. By what law the rights of the plaintiffs and defendants ought to be decided? Whether they depend on the law of this state, or that of Martinique? And 2. By what law the court of Martinique undertook to decide them? 1. The reciprocal rights of these plaintiffs and defendants depended altogether upon, the law of this state — Lex domicilii. 1. Because the law of their domicil. 2. Because the law of the transaction— Lex rei gesta; for it was entirely a Maryland transaction - — begun there and intended to end there — passing through Martinique for a moment. 1. The parties were citizens of this state, and the transaction was a Maryland transaction. Law of the domicil and the lex rei gesta the same, and. ought to have been applied to the case. Burrows vs. Je-mino, 2 Sira. 733. 12 Fin. Jib. 17, pi. 9. De Sobry vs. Terrier, 2 Harr. & Johns 191. Rights to personal things follow the domicil of the parties. Succession ab intestato, &c. So a transaction may depend on the place where carried on, and intended to be concluded. Sill vs. H’ors-tvicke, 1 II. Blk Hep. 690. Philips vs. Hunter, 2 H. Blk. Hep. 406. Piper vs. Piper, JImbl. 25. Thorn vs Watkins, 2 Ves 35. In our case it is undeniable that the parties could have had no rights but such as the law of this state gave. They were all citizens of this state, acting as Maryland merchants. The sale of the flour — tile note of hand payable in Baltimore — the delivery of the flour- — shipment — assignment of the bill of lading — deed of trust — alf Maryland acts, looking to the law of Maryland peculiarly and exclusively. It was intended, to be sure, by Wright, that the flour should go to Martinique, and be there sold; but returns were intended, and therefore the. whole affair was intended to end as it had been begun and carried on in this state. But the court in Martinique has confessedly, upon the face of the judgment, applied the law of that Island to the case. Is it fit that the law of that Island should supplant the law of Maryland? Is it not unjust? It is consistent with the duty of this court to take • what it sees to be a French rule for a guide, where the law of tills state ought alone to determine? It is contended that it is unjust, and that this injustice and impropriety appear upon the face of the French proceeding. Buchanan vs. Fucker, 1 Campb. 63, 180, b. Now here there is a ■vice on the face of the proceeding. It professes to adjudicate by a law which has nothing to do with the rights of the parties. This is the grossest injustice, which tire administrators of the law really applicable to those rights, cannot and will not tolerate. They must abdicate their duty first. Let it be remembered, that no foreign judgment is binding in itself. It is comity alone to which it owes the respect which is paid to it. The great reason why a foreign sentence binds at all, even from comity, is that the foreign tribunal is presumed to understand the law of the case; that is, the law by which itself is bound, or of its own country, better than the court before which the foreign sentence is produced; As if the sentence turns upon a point of local law properly applicable to the subject, it ought tobe respected, because it is of much greater aushorir ty to show what that law is, than any other which can be produced. This reason presumes, however, that it is the local law which ought to give the rule, and consequently does not apply where the decision ought not to be upon the law of the place where the first tribunal sits. Tor example, in this case, the rule ought not to have been the law of Martinique — the lex rei scilm, but the law of Maryland— the lex domicilii and the lex rei gesta. The court of Martinique knew nothing1 of the law of Maryland, and did not profess to apply it. This court understands that láw. By receiving the sentence then as conclusive, this court invert the motive. This court receives the foreign sentence, because the foreign court is supposed to know the law of the case — the lex loci, better than this court. But here confessedly the foreign court knew nothing of the law of the case, (as it was not the lex loci,) and it is this court that knows it. This couit then is called upon to take their ignorance for its guide, and to give up its own peculiar knowledge to comity, upon the foundation of a rule which intended to provide for the court’s instruction, not for its stultification. Such comity would be a crime. It would be to give to a petty tribunal in Martinique a power to repeal the law of this state — to trammel our ju-dicatures — to fix its patches upon our jurisprudence, and wrest our rightful jurisdiction from us. Let us look again at the case of Burrows vs. Jemino, 2 Stra. 753 1. The thing and the parties were within the jurisdiction of the court at Leghorn', and 2. “The Lord Chancellor was clearly of opinion, that this cause was to be determined according to the local laws of the place where the bill was negotiated,” &c. And hence he considered the decision of the court> administering that local law, binding upon Iiim. It was the highest evidence of that law, by which the case ought to be decided. Is this »o here? Who will maintain that the law of Martinique ought to be the rule on this occasion; or that a Martinique sentence ought to bind, because it furnishes the best evidence of that law, in a case where that law ought to have no effect whatsoever? The judgment of the court of Martinique is erroneous on the face of it, as applying a law which was not applicable. So in the case of an award, if an error in law appears on the face of it, although the judges are of the parties own choosing. But 2. The plaintiffs may recover consistently with that judgment. The first judgment has nothing to do with the plaintiffs’ rights. It acts only on those of the defendants, as they represented them. The rights ol the plaintiffs may therefore, without violence, to that judgment, be now enforced Lei the first judgment conclude as far as it goes, and what does it say? That (without looking to the rights of the plaintiffs,) the defendants ought to be paid out of the proceeds of the flour. Be it so; but we are now looking to the plaintiffs’ rights, upon which that judgment says nothing, and against which of course it can conclude nothing. Push it as far as it can go, and the plaintiffs are clear of it. But suppose the opinion pronounced upon the plaintiffs’ rights in the second judgment, (under which it is always to be observed the defendants do not claim,) is taken in, and what does that amount to, taken in connexion with the first, and interpreted as largely as possible? Simply, that by the law of Martinique, (which that court believed itself bound by,) it was of opinion that the defendants were entitled to be paid. Agreed — but it is consistent with that opinion to give the plaintiffs redress by the law of Maryland, That opinion may be correct, and yet the plaintiffs may be entitled to recover. It may conclude, and yet the defendants may be obliged to refund. It may be true that by the law of Martinique the defendants had the right of revendication, and to take in satisfaction of their debt the property of the plaintiffs, and it may also be true, that by the law of Maryland they ought to refund to the plaintiffs what, by that law, belongs to them. As an evidence of local law let the foreign opinion be respected, (and it claims to be no more than an opinion upon local law;) but if the case is out of that foreign law, and belongs to the domestic code, the turn of this court to ad judicate upon the merits, has now arrived without any disrespect to that opinion; and it is now the province of this court to apply the domestic rule, not hitherto touched by any judgment, and consequently perfectly at large. In a word, the ■whole of this case is open without impeaching the judgment at Martinique, which has never decided upon tire rights of these parties by any law on which they depended. That decision remains to be given here. And here the case of Moses vs. Macjcrian, 2 Burr. 1009, is in point, where it was said — “The ground of this action is consistent with the judgment of the court of conscience, ft admits the commissioners did right. They decreed upon the endorsement of the notes by the plaintiff, which endorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence.” “The ground of this action is, not that the. judgment was wrong, but that (for a reason which the now plaintiff could not avail himself of against that judgment,) the defendant ought not injustice to keep the money.” Now here the opinion is not impeached, that '•'■by the law of Martinique the defendants ought to have recovered.” The plaintiffs only insist, that by the law of this state, which furnishes the true rule, but of which in the court of Martinique the plaintiffs could not avail themselves, the defendants ought not to have recovered, and therefore cannot now in justice keep the money. And observe too, that in Moses vs. Macferlan, the parties before the court of King’s Bench, were the same parties who were before the court of conscience. The tribunals were both domestic — the jurisdiction of the first tribunal was complete, and was not denied, yet as the point upon which the plaintiff claimed in King’s Bench had not been denied in the court of conscience, although it was material to the merits, the former court thought itself not precluded from going into it. In the present case there are different parlies — the tribunal foreign — the jurisdiction denied. The authority of Moses vs. Macferlan may be vindicated against'the opinion of Ch. J. Eyre, in Phillips vs. Hunter; and it is an authority to show, that want of-privily is nothing in this action, and that even a recovery in an adverse suit is nothing. 3. But that the defendants cannot hold this money upon the Martinique judgment, because they obtained possession of it against the taw by which they lucre bound, which law, (the law of Maryland,) gave it to the plaintiffs. As between them and the plaintiffs the law of this state is the rule and measure of their rights. Both were bound by that law. The defendants have resorted to a Martinique tribunal to get rid of that law, and to violate those rights. The very production of such a sentence is a wrongful act. It is in fraudem legis. The law of Maryland says, “you shall not seize or obtain payment of your debt out of this flour.” By a direct infraction of that law, they have made use of a foreign tribunal, ignorant of the law of Maryland, and unwilling to apply it, to seize the flour, and obtain payment of their debt out of the proceeds. They sail against the wind and tide of the law, by which they are bound — by which the transaction was impressed. They bid defiance to.-it, and set up a trick and an evasion against it. It is .impossible that any thing which deserves the name of jurisprudence can suffer this. Such, will be shown, are the authorities — the best weighed and most maturely considered'. • But before that is done, let us take a slight view of the general authorities respecting foreign judgments, upon which the defendants have relied. The cases are all collected in I IJougl. (in a notef) from page 4 to 6, subjoin* e<3 to the case of Walker vs. Witter, which is itself an an-thority upon this matter, where Lord Mansfield says, “foreign judgments are a ground of action everywhere; but they are examinableN Crawford vs. Whittal, (in the note) is to the same effect. In Sinclair vs, Frazer, (also in the note,) it is said to be. prima fade evidence, and that it lies on the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained. Plaistow vs. Van Uxern, (also in the note,) is to the same effect. In Galbraith vs. Neville, (also in the note,) Lord Kenyon was for making it conclusive. Butter, J. “A .foreign judgment is conclusive till impeached by the other party.” “A foreign judgment is only to be taken to bo right prima facie-, that is, we will allow the same force to a foieign judgment that ve do to those of our own courts not of record.” “In short, the result is this, that it is prima facie evidence of the justice of the demand in an action of assumpsit, having no more credit than is given to every species of written agreement, viz. — That it shall be considered as good until impeached.” It is clear "then, from all these general authorities, that if the defendants were plaintiff), to obtain here the effect of their judgment in Suarlinique, they could only use it as prima fade evidence. Why should they have a larger benefit from it when they offer and rely upon it as defendants? In none of the cases is this distinction taken, until it was taken by Ch. J. Eyre, in Philips vs. Hunter, 2 H. Blk. Rep. 402, and there he was overruled by all the judges in the Exchequer Chamber, and Lord Loughbo-rough was against him in the common pleas. Butter, Í. indeed, attributes to Lord Ilardwicke such, a distinction in the case of the Welch decree, affirmed by the House of Lords. But that was a case in chancery, and turned upon the maxim, that he who seeks equity shall first do it. And moreover it was a domestic decree by reason of its affirmance by the House of Lords, and quite impossible that Lord Ilardwicke should disturb it. It was going a great way to say, that if he was called upon to enforce it, lie would examine into its merits. The distinction is in itself unfounded and idle. If the judgment is good as a defence, it is good as a claim. In both cases this court is called upon to respect and enforce the foreign judgment. Independently of that judgment the plaintiffs have a right to recover. The defendants set up the judgment to take away that right, and consequently ask the court to give effect to it. Does he who pleads a bond as a discount, less call upon the court to set up and enforce the bond, than he who brings an action upon it; and will the bond do in the one case what it will not do in the other? Either the foreign judgment is binding in its own nature, or it is not. If it is binding, it ought to be enforced for a plaintiffas well as a defendant; if it is not binding, this court cannot make it so. The defendants say this judgment is conclusive. How? In itself? — No, for then it would be conclusive for a plaintiff. How then? No answer can be given. Do they not ask an effect for this judgment? Must you not give effect to it (if you do as they ask,) by vour judgment? Could you give greater effect to it on behalf of a plaintiff? They do not rely upon the mere vis inertise of this foreign judgment. They rely upon your adoption ot it— Upon your forming an alliance witih it — Upon your reinforcing it by your own judicial aid — Upon your communicating to it life and strength and power. Put this foreign judgment out of the way, and have the defen* dants any case? None. Upon what then do they lean but upon this judgment? And what is this judgment .if you do not execute and enforce it against the plaintiffs to the destruction of their case? We come now to the cases of attachment decided in England in-favour of assignees against geneial creditors, which are absolutely conclusive. Hunter vs. Potts, 4 T. R 182. Sill vs. Worswick, 1 H. Elk. Rep. 665. Philips vs. Hunter, 2 H. Blk. Rep. 402. This last case was error in the exchequer chamber, from a judgment in King’s Bench, in a case decided immediately after Hunter v. Potts, which was considered as settlingthe law. In Hunter v. Potts, the whole argument of the court proceeds upon a supposition, that if the owner (the bankrupt,) had himself assigned, in the usual course Of business, his assigneee might recover, which is exactly our case. In that case both parties were English subjects, &c. In Sill vs. Worswick the court say, “personal property has no locality, but is subject to that law which governs the person of the owner.” Our case is more favourable than Philips vs. Hunter, because the property here went from America, and was on its way back through Martinique. In Philips vs. Hunter it was not so, the defendant in that action brought it to England by means of his attachment, and it might not have got there otherwise. In that case all the parties were English traders, and English subjects. The debt from the bankrupt to the defendant was contracted in England. It was a case between English subjects upon English property. So here in our case, the parties are Maryland traders, and Maryland citizens. The debt from Wright to the defendants was contracted in Maryland. It was a case more emphatically between Maryland citizens, upon Maryland property, for not only the debt to the defendants was contracted in Maiyland, but the property, out of which they took payment, was shipped in Maryland, and was to return to Maryland. In Philips vs. Hunter, the court compares the case under the bankrupt law to a transfer by the bankrupt himself, which it takes for granted would defeat the attachment. They say the parties were bound by the law of their own country. That applies exactly here. The opinion of Eyre, Ch. J. (who differed with the court,) sets out upon a false assumption, that the plaintiff’s demand must be judged of according to the law of the foreign tribunal.</p> <p> Curia adv. vult, </p>

of Chancery. To comprehend this case it is necessary to state the former proceedings between the same parties, they constituting a part of this case. On the 11th of May 1796, the first bill was filed by E, Norwood, (the appellee,) against S. Nor-'wood, (the appellant;) the object of which is fully stated in the decree by the chancellor.

This was an action for the use and occupation of 500 acres of land called Stanley's Lot. The general issue was pleaded. 1. The plaintiffs below, (the present appellants,) proved that the defendant had used and occupied the land, men tioned in the declaration, from April 1811 to the end the same year, and that it was the property of Ann, female plaintiff, whilst she was sole. Ihey also proved its value.

<p>A F was, by a decree of the court of chancery, ap-of W Ft sand authorised, upon receipt of the pui clwse money, to execute a conveyance to the purchaser, and his heirs. A F so’d the lands to J and the sale was confirmed by the chancellor* J M, the purchaser, died intestate, leaving“Btl and C M bis hens at law, to whom A F the trustee, conveyed the tanOs purchased by J m an action ot ejectment to recover the lands, that the deed might be read in evidence.</p> <p>.... Where a sale is made hy a trusree appointed by decree of the court of chancery, which is ratified, the leca! estate, on the death of the purchaser, the purchase money being paid, dues not vest in the heir at law of the purchaser, without a deed from the trustee</p> <p>A commission to make partition of lands, and the return thereto, not permitted to be read in evidence the commission being defective, inasmuch as the oath ot the commissioners was not annexed to it and the commission and return did not appear by evidence to have been ratified by the court.</p> <p>in orphans court to hare been imoUedly revoked, and was refused to be admitted to probate. On appeal to the court ofchan-cery, the decree of the orphans court was affirmed. In an action of ejectment, to reeover the land* devised thereby, the will was offered in evidence by the plaintiff — ¿íe/d, that the decision of the orphans court and tout of chance*? v.*» not concluwrey and that the plaintiff might prove the execu* 'tion of th« will,</p> <p>Parol evidence» “ovc'th’it a'testa.' Sir had frequently tife'day before lm cutionofa paper fi“l!aTtt,"li],t0iiiíit and*dh”tOTed "he had destroyed it; poffimt a,eheCs«p<i tut was unrasy temietuiiKi wished to a'iteSi(thedwit nesses to go to iús house a» nun pm*</p> <p>h m, being a made his win in maward°s4,haddtwo January5oíoseanti the other m June he 7 acquired Ty ffiamf muHifauS gust' lit us, in like Kiermore,es of Which «ñ — Held. that the will was in force and us such aduna. «n-ncin ...» wíu'wás'inlrorife,</p> <p>'plaintiff. aicffifr'tbe^iiain-off in an action of certain “'añds Sfd“in certffñ conveyances set dict^and.judgnnmt waybereon</p>

An action 'vas instituted on the 27th of September 1811, upon & writing obligatory, bearing date the 28th of September '^7, and executed to the state, by a certain Samuel T. Philemon C. Blake, and Thomas Wright, (the defendant and now appellee,) reciting, that “whereas Cor-oulheren, (late Cornelia Sewell,) executrix of the 'ast an 1.

The facts of case aPPea1' to be, that/). Steuart, being possessed of a *arSe real and personal estate, died on the 11th of October 1814, having never had but three sisters, all of whom died many years ago, and only one of whom left any chil-^ren’ v’z Susan, who intermarried with James Tilgh-wan; and having never had but four brothers, viz. George Hume Steuart, Charles Steuart, William Steuart, and ^amés Steuart, That Susan Tilghman, at the time of her death, left Frisby…

In this ca,se an attachment issued on the 2d of February 1805, in the names of the appellants, against the lands, tenements, good 1.

<p>Appeal from Frederick County Court. This was a spec¡a[ ac¿¡on on the case, to recover from the defendant, (now appellee,) the difference between the amount of the purchase money for which certain real estate was sold to him, at auction by the plaintiffs, (the appellants,) and the amount which that property brought on a resale — 'the defendant having refused to comply, &c. The general issue was pleaded. At the trial the plaintiffs offered in evidence the will of Philip Singstack, dated the 3d of October 1803, containing among other provisions, the Following: “The resj(]ue 0f my estate, whether houses, lands, store goods, negroes, or other property real, personal or mixed, my will and desire is may be sold most for my interest, at the discretion of my executors hereafter named, both as to time of sale and terms of payment, and the money arising therefrom, my will and desire is, may be put to interest,” &c. “But in case none of my said children should marry, or live to possess my property as aforesaid, or should die without wife or issue, and intestate, my will and desire is, in such case, (and in such case only,) that all my property intended for them, including in that case my lands at Beason Town, may be sold as aforesaid, and the money arising from such sale as aforesaid may be received by my said executors,” &c. “And lastly, I hereby appoint and nominate my friends and neighbours, Ignatius Davis and George Buckey, the executors of this my last will and testament, and do hereby vest in them full powers to transfer and convey, by deed or otherwise, all my right to the lands and other property hereby directed to be sold in manner aforesaid.” The plaintiffs also offered in evidence the letters testamentary granted to them on the 21st of December 1804; and that on the Slst of January 1805, public notice having been iirst given, they set up at public auction the house and lot mentioned in the declaration, in Jiuckey’s Town, in Frederick county, the same being a part oi the real property of Philip Singstacje, deceased, and by his will directed to be sold by the plaintiffs. That at the day and place of sale, before and during the time of sale, the following written conditions of sale were publicly set up, which said terms were signed by the plaintiff*, and several times publicly proclaimed by the auctioneer before and during the said sale, viz. “Conditions — All who purchase of the personal property now offered for sale, to an amount exceeding three dollars, will be entitled to nine months credit, on passing their notes, on interest, with approved security- — the interest to be released if such sums are punctually paid; for less sums the cash must be paid; no goods are to be removed before they are settled for, Anv person purchasing, and not complying with those conditions some time on the day of sale, are to forfeit such sums as may be lost on a second sale of the same goods. If the executors should bid for any article, it is to be considered as bidding for themselves, and not for the estate, unless it be made known when the bid is made that they bid for tlie estate. For the real properly one third of the purchase money will be required in hand, and bonds, on interest, with approved security, for the residue, divided into three equal annua! payments — interest on the whole to be paid annually unless other proposals may be made by the purchasers that may be as agreeable to the executors. Those who purchase real property, and may not comply with those conditions, are also to be subject to pay any loss that may be sustained on a second sale of the same property. In other respects the sale to be conducted and regulated as is customary in such cases.” They also gave in evidence, that at the said sale, on the dav above mentioned, the defendant bid 82,000 01 for the said house and lot, and that being the highest bid offered, the house and lot were struck off to the defendant, by the auctioneer. That the clerk of the vendue thereupon, by the public direction of the auctioneer, entered the name of the defendant in the vendue book as the purchaser of the said house and lot for the said sum. That the defendant, when he made the said bid, was near the clerk of the vendue, and saw him with the vendue book before him. That- on the said 31st of January 1805, after the said sale, the defendant told Casper Mantz, a witness in this case, that he, was offered the interest of the purchase money as rent for the house and lot, and appeared to be satisfied and pleased with his purchase. That shortly after the sale, the defendant entered into the possession of the house and lot, and continued in the possession thereof some weeks; that after-wards, and before the 30th April 1805, he told the plaintiffs that he would not keep the house and lot, and refused to pay the money, or give the bonds as mentioned in the written terms of sale. Whereupon the plaintiffs informed the defendant, that they would proceed to sell the said property, and would hold him answerable for any loss that might be sustained on the second sale, to which the defendant made no answer. That afterwards, on the SOth April 1805, they inserted in two newspapers printed in Frede • rich Town, the following advertisement: “Public notice. Mr. John L. Harding being the purchaser at public sale of the house and lot late the property of Philip Sing stack, deceased, on the great road leading from Frederick-Town to Noland's ferry, at the place called Bucket/s-Town, and the said Harding not complying with the conditions of the. said public sale, we shall, on the 24th of May next, offer the said house and lot again at public sale on the former terms, to wit: One third of the purchase money to be paid in hand, and the residue in three equal annual instalments, bearing interest from the day of sale; the interest on the whole to be paid annually, for which bond and security must be given. A deed to be executed by us when the whole of the purchase money is paid.” Which said advertisement was published in each of the newspapers once a week until the 24th May 1805. That Bnckey's-Town, a village in which said house and lot is situated, is between five and six miles from Frederick-Town. That afterwards, in pursuance of the said advertisement, and at the time and place therein mentioned, the plaintiffs did set up the same house and lot at public auction, on the-following conditions: — “The conditions of our former sale on 31st January last, being as follows: — For the real property one-third of the purchase money will be required in hand, and bonds, on interest, with approved security, for the residue, divided into three equal annual payments, interest on the whole, to be paid annually, unless other proposals may be made by the purchaser that may be as agreeable to the executors. Those who purchase real property, and may not comply with those' conditions, are also to be subject to pay any loss that may be sustained on a second sale of the same property. And as Mr. John L. Harding then became the purchaser of a part of the real property above named, to wit, the house and lot, oq those conditions, and has not complied with the said conditions of sale — we do, for and in behalf of the estate for which we aGt, now offer at public sale, a second time, on the former terms and payments as above expressed, the said house and lot of ground,and shall cl aim-of the said John L. Harding, any loss that may be sustained on a second sale ot tire same property. All who purchase the personal property now to be offered at public sale to an amount exceeding one dollar,” &c. &c. At which'said last mentioned auction, acer tain Jeremiah Tarltori bade §1500 01, which being the highest .fed.offered, he became the purchaser, and the house and lot was struck off to him. That many people attended the said second sale, and that it was very generally known in Frederick Towv, and the neighbourhood. That the plaintiff's seemed anxious that the said house and lot should sell for iib full value. That many bids were made by different person», and that the sale, was altogether very lairly con-dimed; and that it was cried by the auctioneer on the last bid for half an hour before it was struck off The plaintiff’s then offered in evidence a deed from ihe plaintiffs to the said Tarlton, for the said house and lot so purchased, dated the 25 (,h of June 1805. The defendant then offered evidence, that at the said first sale the defendant himself bid SI600, and Ignatius Davis, one of the plaintiff's, for and on behalf of the estate of Singstack, deceased, the testator, bid §20C0, and that the defendant then bid one cent, on which bid the property was struck off' to him for S2000 01. That the said property was not worth 82000, but that the utmost worth of it did not exceed SI 500. The defendant further offered in evidence, that the house and lot at the second sale, was pure!,used by Tarlton, for the use and benefit of George Buckey, one of the plaintiffs; and gave in evidence a deed from Tarlton to the said Buckey, for the said house and lot, dated the 25th of June, 1805, in consideration of S1500 01. The plaintiffs then prayed the opinion and direction of the court to the jury, that if they find from the evidence that the defendant saw and read the written terms of sale herein first before mentioned, of the house and lot mentioned in the declaration, before he made the bid by which he became the purchaser of the said house and lot, and that the same was struck off to him on his bid of 82000 01, as above stated, and that the auctioneer publicly directed the clerk of the vendue, in the presence and hearing, and with the consent of the defendant, to write the name of the defendant in the vendue book as the purchaser, and that the same was accordingly immediately done in the presence, and with the consent of the defendant; and that tire defendant entered into the actual possession of the said property. And if they further find that he afterwards refused to pay the money, or give the bonds as required by the said written terms of sale first above stated, and that the plaintiff's then gave him notice that they should sell the house and lot, and hold him answerable for any loss that might arise on the second sale, and that the defendant did not object thereto; and that the second sale was sufficiently notified and fairly understood, and that the house and lot, at the second sale, sold for 81500 01, that then the plaintiffs were entitled to recover. This opinion and direction, the Court, £Buchanan, Ch, J. and Clageit and Shriver, A. J] refused to give. The plaintiff’s excepted; and the verdict and judgment being against them, they appealed to this court.</p> <p>The cause was argued at June term 1811, before Polk, Nicholson, and Earle, J. and re-argued at the present ctprm before Nicholson, Eari.e. Johnson, and Martin/</p> <p>The. principal objx=vú<«« made at the trial in the county court, by the defendant, was that the first sale was void by the statute of frauds, 29 Car. II, ch. S, and on this ground the court decided that the plaintiffs had no right to recover. In Simon vs. Motivos, 3 Burr, 1921, no distinction is made between sales of lands and goods, and although in some later cases it has been decided that sales ol' land are within the statute, there is nothing in the words of the statute to warrant the distinction. See sec. 4 and If, 1 Com. on Cont. 75, 81. Roberts on Frauds, 115, 116. Coles vs. Tre-lothick, 9 Ves. 249. And nothing can account for the distinction that has been taken but the policy of the English laws to fetter the conveyances ol land. The defendant in this case stood by, and consented to the entry of his name as the purchaser, and by subsequent conversations and conduct, confirmed the act of the clerk as his agent. But if sales of land are within the statute, yet the subsequent possession of the defendant takes it out. of the statute. 1 Com. on Cont. 79, 81. It may be objected that these are chancery cases, but the court of chancery cannot compel the execution of a contract made void by statute. Ibis Would be to make the court of chancery above the law. The contract is void, or it is not. If it is void by the statute, the court of chancery cannot compel execution of it. But, the court of chancery does compel execution, where possession has been delivered. Therefore, where possession has been delivered, the case is not within the statute. In the decree in the case of Dallam vs. Onion, in chancery in 1790, it is laid down as settled law, that sales of lands at auction are not within the statute of frauds.. It was objected at the trial, though if did not seem to be relied on, that even if the first sale were valid, yet the difference of sales being in the nature of a penalty, could not be recovered. The case of Simon vs. Motivos, and Mer-tensvs. 3 chock, 4 Esp. Rep. 251, are a complete answer to this objection. It may also be objected now, that at the second sale the property was purchased for one of the plaintiffs. This cannot be taken advantage of by any but the heirs of Singstaclc. It was for the defendant’s advantage, as he did actually bid higher than any one. else. As, between all persons, but the heirs of the deceased, such a, sale is good. It is only for their protection and benefit,, that it will be set aside if, when they come of age, they chuse to require it. It was laid down by the chancellor,, that if all the heirs were of full age, and consented, the sale might be ratified And in-this case it was for the benefit of the defendant that the sale was made. The children of Singstaclc have no interest in the second sale, if the first was good. .</p> <p>He contended, 1. That the sale-is a verbal sale under the statute of frauds. 2. That the property, being worth no more than $1500, and being-purchased by one of the plaintiffs, the plaintiffs are not en* titled so recover. 3. That there is no good consideration lor the assumpsit declared on.</p> <p>1. This sale is void by the statute of frauds, being a of lands. Buckmaster vs. harrop,7 Ves. 34i. Coles vs. Trucothidc, 9 Ves. 234. Blagden vs. Bradbear, 12 Ves. 466. Jhason vs. Jlrmitage, 13 Ves. 25. Buckmaster vs. JIarrop, Ibid 456. Wain vs. Warlters, 5 East, 10. Stands-, field vs. Johnson, 5 Esp. Rep. 101. Walker vs. Constable, 1 Bos Pidl, 306. All the authorises on this subject are put together in Noland on Contract, IT'S. The reason assigned why a sale by auction, where the auctioneer sets down the name of the purchaser,is still within the statute, is that the whole contract is not in writing, being only a memorandum of the name of the purchaser. A moment’s -veilection will show that the defendant’s having taken possession cannot aid this case. The reason why a court in equity will in such cases interfere, is that such taking possession is evidence of a subsequent agreement, and upon that ground alone they enforce it, But in such case chancery will not enforce the contract, except by giving the party the consideration of the contract. In the present ease, if application was made to equity by the vendors to support this contract upon the ground of the vendee’s possession, &c, it would only compel the execution, upon the seller’s conveying the land. Chancery never interferes to recover a penalty. This suit is for a penalty. It must be seen at once, that by resorting to the possession subsequently taken, the party can only succeed upon the ground that the contract continues, viz. That the vendee is entitled to the land, and the vendors to the money. Whereas this suit is on the principle that the vendee’s right is gone, and the suit is for a penalty, and of course can only be sustained on the ground of the validity of the original sales fey auction.</p> <p>2. In this case one of the plaintiffs is the purchaser, and sales of this nature are considered in law as fraudulent. 2 Fonbl. 159. Carter vs Lilly & Browning, per Chan, Hanson, in 1805. This is an action of assumpsit, and it has always been considered, that a man, (especially in assump-sit,) shall never take advantage of his own conduct, which is in its nature fraudulent. In this case the vendor buys the property himself at the second sale — it is immaterial whether this particular sale was fair or not — the policy of the law in such cases is to prevent a man’s buying at his own sale, and to prevent those frauds which might be prac-tised, if such sales were permitted. It is contended by the appellees, that this second sale cannot be such a one as must have been contemplated by the terms of sale. The parties must have only meant a valid sale, a fair sale in legal contemplation, not such a sale as the vendors were bound not to make; not such a sale as might be vacated. If this is correct, there has been no second sale, under the true meaning of the terms of sale, It has been contended by the appellants’ counsel, that the validity of this second sale cannot he controverted by the defendant, (Harding,) fhat being a question solely between the trustees, and the heirs. A slight examination will shew that this doctrine is not tenable. Suppose that the heirs, (as they may,) shall in future determine that this purchase by the trustee is not valid, the result is, that the second sale to the trustee is vacated, the first sale in force, and the purchaser,-(the defendant,) liable under his contract — if it should be supposed to be valid, either as good, being by auction, orconfirtn-ed by taking possession — in which case the defendant would be liable for the purchase money, and (if this judgment should be reversed and he be compelled to pay the forfeiture,) be obliged also to pay the penalty. In this branch of the enquiry the question is as to the validity of the second sale — Because, even supposing the first sale not affected by the statute, yet the plaintiffs cannot recover if the second sale is not good, the present suit being for a forfeiture for not complying with the first sale.</p> <p>3. This question depends on the second point, because if the second sale is not valid there is no consideration.</p>

<p>Appeal from Baltimore County Court. This was an at-tachmcnt on warrant, issued the 21st of January 1811. The affidavit upon which the warrant for issuing the attachment was founded, is in these words: “Commonwealth of Massachusetts, Suffolk county, sc. Be it remembered, that on this 15th day of January, in the year 1811, before (he subscriber, judge of the court of common pleas in and for the county of Suffolk, in the commonwealth aforesaid, personally appears William Gray esquire, of Boston, in the said county, merchant,and makes oath on the Holy Evangelists of Almighty God, that Augustus Story, not being a citizen of Maryland, and not residing therein, is bona fide indebted to him the said William Gray, of Boston aforesaid, merchant, (he being a citizen of the United Staten,) in the sum of fifteen thousand dollars of the lawful money of the United Stales, over and above all discounts. And the said William Gray at the same time producing to the subscriber the original note, which is hereunto annexed, subscribed by Bradstreet and Story, promising to pay the game sum to Augustus Story, or to his order, and by the said Augustus Story endorsed, for a valuable consideration, to the said William Gray, whereby the said Augustus Story became so indebted as aforesaid to the said William Gray. And the said William Gray also maketh oath, that he doth know that the said Augustus Story is not a citizen of the state of Maryland, and that he doth not reside therein. Sworn before me, Win- Donnison, judge of the court of Common Pleas.” Then follows a certificate by the Clerk of the Court of Common Pleas for Suffolk county, under the seal of the court, certifying “that the honourable William Donnison is one of the judges of the court of common pleas for the county of Suffolk, in the commonwealth of Massachusetts, duly qualified, and acting in .said capacity; and that full faith and credit ought to be given to his legal attestations in court and out, in his said capacity.” The promissory note referred to in the affidavit was annexed. The warrant was dated the 31st.of.January 18H, and under the hand and seal of Robert Gorsuch. directed to the clerk of Baltimore county court, requesting him to file the affidavit and annexed promissory note, and to issue an attachment, &c. The attachment was issued on the 21s.fc of January 1811, by the clerk of Baltimore county court, reciting the warrant from Robert Gorsuch, esquire, one of the justices of the peace for Baltimore county, directed to the sheriffnf Baltimore county, and commanding him to attach the lands, &c. of the said Augustus Story, to the value of SI 5,000, according to the act of assembly, &c, and make known to the garnishees, &c. A capias ad respondendum also issued on the 2lst January 181 Ij and a short note was filed, and copy sent, with the writ. At March term ¡1SH» 1he sheriff returned the writ of .attachment endorsed, “Laid in the hands of John Miller .Prentiss and Robert E. Garter, trading under the firm of Prentiss Carter, the ¿2d January 1811, in the presence of Ashad Hussey and John Stevenson — Wm. Merry man sheriff'” The , capias was returned endorsed, “N. É,” The garnishees appeared and defended, &c. At March term 1812, the plaintiff’s declaration was filed, and the garnishees pleaded non as-sump sit by Augustus Stoiy, and nulla bona-, to which there were general replications and issues joined. Verdicts for the plaintiff, damages assessed to §1.6,297 50, upon the first issue, and goods and chattels in the garnishees’ hands to the value of §4,338 75, upon the second issue. The verdicts were taken, subject to the opinion of the court, on a statement of facts, and subject also to all objections that might be legally made, either to the form or substance of the attachment proceedings in case no verdict had been rendered. The facts stated were these. — On the 26th of January, 1811, Bond and Prentiss obtained an attachment against Story, which was laid in the hands of the present garnishees, as also in the hands of Thomas Marean, another gar.nishee of. Story, and returned to the same term of the court as the attachment in the present case. There were funds and effects belonging to Story in the hands of the present garnishees, at the time of the verdict, to the amount of 4,044 49, and at the same time there were funds and effects belonging to Story, in the hands of Marean, to the amount, of §3,540 43. The questions submitted to the court were, 1. Whether the plaintiff was entitled to recover the funds of Story, in the hands of the present garnishees? If so, then judgment was to be entered on the verdict for §4,044 49. And 2d., Whether he was entitled to recover, in addition to the funds aforesaid, the funds of Story in the hands of Marean, in the present suit? If so, then judgment to be entered on the verdict for §7,584 92. It was admitted that the judge, before whom the affidavit in the attachment proceedings was made, was not, as a judge of the court of common pleas, competent, by the constitution and laws of Massachusetts, to administer an oath out of court. But'that he was at the time duly commissioned, and acting as a justice of the peace for the county of Suffolk, and authorized as such, to administer an oath out of court. A pro forma judgment was entered on the case stated for the plaintiff, and condemnation on the verdictfor §7,584 92, and costs. From that judgment the garnishees appealed to this court.</p> <p>The cause was argued before Buchanan, Earle, Johnson, and Martin, J.</p> <p>1. That upon the case-stated, the appellee was not entitled to recover the money or property of Story, either in the hands of the appellants, or of Marean, because the proceedings, on which the writ of attachment issued, were defective. 2. That he was not entitled to recover the property of Story in the hands of Marean, because his attachment had never been laid in Marean’s hands, even if his proceedings were sufficiently regular to bind the property in the hands of the appellants. As to the first point — The appellee’s proceed-iiigs are defective, inasmuch as, 1st. The affidavit does not allege that the appellee was a citizen of the state of Massachusetts, or of any particular state, but only that he was a citizen of the United States. The first section of the act of 1795, ch. 56, enables only citizens of some one of the United States to have the benefit of the act. He contended that there were citizens of the U. S. who did not belong to any state; as those who live in the several territories, and could not, under this law, issue an attachment, consequently it was not clear by the affidavit that the ap-pellee was entitled to be a plaintiff in attachment. S. The affidavit is defective in this, that the affirmant does not swear that he pioduces the note on which the debt is found-ded; but it is merely recited by the judge that the note was produced. 3. The warrant of Robert Gorsuch, on which the writ of attachment issued, does not state, nor is it set forth in the proceedings, that he was a justice of the peace; consequently it does not appear that the clerk of the county court was authorised to issue the writ. lie referred to Jackson vs. Stiles„ Coleman & Caine’s Cases, 468, where the supreme court of New York decided, that the jurats of affidavits must be signed by the judges before whom taken, with the addition of their official descriptions. 4. The certificate of the clerk, which is annexed to the affidavit, is defective, as it only certifies that the judge, who administered the oath, was a judge, and that full faith and credit ought to be given to his acts in and out of court: without certifying that he had authority to administer such oath, which is required by the second section of the act of 1795, ch. 56, and without which the affidavit cannot be good and sufficient evidence. 1st. Admitting, for the sake of argument, that the expressions in the certificate furnish grounds for implying that the judge had the authority to administer the oath, yet the court are not at liberty to make the inference under the provisions of the above section. In Morris vs. Ludlam, 2 II. Blk. Rep. 362, in a plea set up by a garnishee, who had been obliged to pay money to the plaintiff in attachment under the custom of London, the omission to state that the debt was due in the city of London, although necessarily to be implied, subjected him to a re-payment to his original creditor. Again, the constitution and judiciary system of the U. S. provide that the circuit courts of the U. S. shall have jurisdiction (among others) of cases In which the plaintiff and defendant are citizens of different states, or one of the parties is an alien. The courts of the U. S. have decided that this jurisdiction must appear upon the face of the proceedings. And in Bingham vs. Cabot, 3 Dali. Ref). 382, in which case the declaration set forth that the plaintiffs were of Boston, in the district of Massachusetts, the supreme court of the U. S. decided that it was not sufficiently shown that the plaintiffs were citizens of Massachusetts, although they were stated to be of Boston, &c. and though eyen had tfiey been aliens, it would have been sufficient to give the jurisdiction. In Turner vs. Enrille, 4 Dali. Hep. 7, the declaration stated that the plaintiff was Marquis de Caso Enrille, of --Island, and the defendants were of Newbern, in North Carolina, the supreme court decided .that it-was not sufficiently averred that'the plaintiff was an alien, or that the defendants were citizens of North Caro-Una. In Abercrombie vs. Dupuis, 1 Crunch, 343, the declaration represented the plaintiffs to reside in the state of Kentucky, anil the defendants in the state of Georgia, yet the supreme court decided there was no sufficient averment iff citizenship, fn Hodgson vs. Bowerbank, 5 Crunch, 303, the declaration stated the defendants to be merchants of the district of Maryland, and yet the court determined that the omission of the word citizens was a fatal defect, and that it was not-enough to state them to be of Maryland. In Brookes vs. Hunt, Coleman and Caine's Cases, 468, an Omission of that which was easily to be inferred, was held id be fatal in an affidavit. The courts in this state have decided, that the omission by the justices who take acknowledgments of deeds, to certify that a feme covert, who comes before them,' “makes her acknowledgment without being induced thereto by fear or threats of ill usage of her husband, or fear, of his displeasure,” is fatal, although they certify that the acknowledgment was made teilling/y and freely. Although it is impossible that a feme covert ".could make an acknowledgment of a teliriquishment of her interest in an estate, willingly and freely, if it were made under a fear or threat of ill usage from her husband, dr fear of bis displeasure. In Smoot’s Adnir. vs. Bun-bury’s Ex’r. 1 Harr. & Johns. 136, it was decided, that certain words in a probate prescribed by law, being omitted, the probate was deemed’to be defective. The provincial court quashed an attachment under the act of 1729,, ■ ch. 8, in Thompson vs. Towson, 1 Harr and Mullen. 504, on the ground that the affidavit did not state that the “debt Was bona fide due,” although it set forth that no part of the money had been paid more than credit given, &c. It Was also there contended, that the magistrate’s warrant was defective, because he Certified that the debt was due as ap~ peared by a bond, when he should have certified it to be due positively, without reference. These several cases show, that the omission to set forth expressly, that which is required to appear by the proceedings, is fatally defective, although enough is stated, from which that which is so material may, or even must be, irresistibly inferred. In the au-thoritiés referred to it will be found, that the provisions of the law, which require these' particular and special aver-ments, are far less explicit and less precise than the expressions in the "second section of the act of 1795. eh. 56, with which this, certificate purports to comply. This section declares that the affidavit shall'not be good and sufficient evidence, unless the fact is expressly averred that the judge had authority to administer such Oath. Itexcludes any other evidence of suoh authority} than the certificate, Std. But there is not enough set forth in this certificate, from which it may be inferred thatthejudgebad authority toadmi-nister the oath. The certificate merely states that the judge was a judge of the court of common pleas of Massachusetts, and that full faith and credit ought to be given to his attestations in and out of court. This is only certifying that he was a judge, arid as such full faith should he given to his attestations. Rut this statement of his official character, and of the credence due to his official acts, does not come up to the provisions of the second section of the act of 1795, ch. 56, which require that the judge should be of that character, and possessed of those peculiar powers, which entitle him to administer civil oaths out of court. The whole amount of the certificate is, that the person before whom the affidavit was made, was a judge; and unless it can be shown that it is essentially inherent in all judges to be clothed ex virtuti officii with authority to administer civil oaths out of court, there is not sufficient grounds even for inferring that this judge was authorised to administerthisoatb. Now, it is not incidental to all judges to have this power, nor do they exercise this power, hut in virtue of a special authority, conferred from time to time by law. Neither does Coke, Bkickslone, Comyn or Bacon, in enumerating the powers and authorities of a judge, include that of administering civil oaths out of court, as appertaining to their office. The judges of the court of tbe King’s Bench, having criminal jurisdiction, have authority to administer oaths relative to public offences; but even this power is not possessed by the judges of the court of common pleas. And the judge who administered this oath, in this case, is of the court of common pleas, which court has no criminal jurisdiction in Massachusetts. Courts of justice have essentially, and as appertaining to their very nature, authority to administer oaths in all eases of which they have jurisdiction. Justices of the peace are supposed more peculiarly to have authority to administer oaths tn all cases; but it does not appear by this certificate that this judge was a justice of the peace, unless it can be shown that the character of a justice of the peace appertains to his office of a judge. This, however, cannot be admitted, for it does not appear by the hooks that it always, or even usually, appertains to the office of a judge to be a justice of the peace. The judges of the King’s Bench are ex officio justices of the peace, but the judges of the court of common pleas are not; and it is in the highest degree probable, that this judge, who belongs to the court oí common pleas of Massachusetts, which resembles the court of common pleas in England, is not a justice of the peace. There are many judges of courts in this slate who are not justices of the peace, and who undoubtedly have not authority to administer oaths out of court — as justices of tbe levy court — judges of the orphans court, and judges of the criminal court, as such. These judges frequently, ofiener than otherwise,. have the additional character of justice of the peace united to them by a separate commission. And to satisfy the court, in cases of attachments, that the judge had authority to administer an oath, the law requires that the certificate of some person belonging to classes therein designated, and who are in a situation to know the extent of the powers of the judges of their states, should set forth — not that he is a judge, for that is not required, and is sufficiently shown by the judge himself — but that he is authorised to administer such oaths. The certificate is to be the only evidence, all-other kinds of evidence are excluded. In this certificate nothing more can be extracted from it, than that the judge is of the official character he professes to be. It will be found, by reference to the acts of all legislatures, when they prescribe the taking of oaths, that they specially designate the persons or officers before whom they are-to be taken. This' would be a useless provision, if there were officers to whom it officially appertained to administer all oaths. In 1 Jacob’s L. D. tit. Affidavit, 61, an affidavit is defined to be “an oath in writing, sworn before some person who hath authority to administer such oath.” It does not say, sworn before a judge or justice, or other particular officer. The courts in England are authorised to appoint commissioners to take affidavits in causes depending before them; and if they are not taken before authorised commissioners, they are not valid. From these considerations, and taking into view-the peculiar wording of the second section of the act of 1795, ch. 56, and the expressions of the certificate, on which this discussion turns, it must be concluded, that there .is not sufficient grounds for inferring that the judge had -the authority-to administer the oath in this case, even if the court were at liberty to be satisfied with a mere inference.</p> <p>The secondpoint. The appellee was not entitled to recover the property.of Story in Marean’s hands, &c. This position was abandoned by the counsel for the appellee, who considered the objection a'valid one.</p> <p>Winder, on the same side, referred to Hepburn vs. Ell-ssey, 2 Cranch 445, where it was held, that a citizen of the district of Columbia was not a citizen of a state within the meaning of the constitution; and The Corporation of Eew Orleans vs. Winter. I Wheat. 91, where it was determined that a citizen of a territory could not sue a citizen of a State in the courts of the XI. S.</p> <p>1. The oath taken by the appellee, as státed in the affidavit, excludes the idea of-his being a foreigner, as he is stated to be a citizen of the United States. His being stated to .be of Boston, in the county of Suffolk, shows by necessary inference that he is a citizen of Massachusetts. The cases cited arose under the constitution and laws of the U S. as to the question of jurisdiction, and are not applicable to a case like the present. To show that the affidavit was sufficient they referred to Campbell vs. Morris, 3 Harr. & M' Hen. 535. 2. It is not required by the act that the parry should swear that he produces the note, &c. upon which the debt is founded. He isonly to swear to theamount due to him,and to produce to the judge the notes, &e. who annexes it to the affidavit. 3. The objection that Gorsuch was not. a justice of the peace is obviated, because it. is certified by the clerk in the caption of his record, and also in the attachment, that he was a justice of the peace, and that is as sufficient evidence of that fact, as if he had himself stated that he was a justice of the peace, Brydon vs. Taylor, 2 Harr. & Johns. 296. Hall vs. Gittings’ Lessee, ibid 383. Lawrence et nx. Lessee vs. Heister et al. 3 Harr. & Johns, 343, 4. The act very strangely requires that the cleric should certify that the judge had authority to administer an oath, without permitting the Certificate of tiie judge to prove itself. The, clerk, to follow the words of the act, must use the word such, and that would make his certificate nonsense. It is admitted in the statement that Donnison, the judge in this case, was authorised to administer an oath; and it is to be presumed that he had authority to administer it, or he would not have done so. The clerk certifies that he was a judge, and that full faith and credit ought to be given to his acts. If he had no authority to administer an oath, the clerk would not have said that full faith and credit ought to be given to his acts.</p> <p>The appellee is entitled to strict justice only. He proceeded under an act of assembly giving special privileges to particular persons, and he must show that he comes strictly within its provisions. 1. The appellee’s being stated to be of Boston, &c. and the affidavit being made in the county of Suffolk, in Massachusetts, does not necessarily imply that he was a citizen of Massachusetts. The expressions in the constitution of tiie U. S, upon which the cases cited for the appellants were decided, are *ot so strong as those in our act of assembly. A citizen of the district of Columbia, or of any of the territories, could not obtain an attachment under the act of 1795, ch. 56. The appellee might be of Boston, merchant, and yet not d citizen of Massachusetts. In Campbell vs. Morris, the court only acted upon the points raised, and there was no objection made to the form of the affidavit by the counsel. 2. The act says, and al the same time producing the cause of action, and it should have been asserted by the ap-pellee that the note produced is the one by which the defendant was indebted to him. Here the verity of the note is simply the assertion of the judge, and not that of the ap-pellee. 3. The appellee’s counsel seem to think this objection is fatal, unless they can bring themselves within the law, and they attempt to do so by saying the certificate of the clerk supplies the defect. The act says, the warrant must be granted by a justice of the peace, &e. in his character of justice, &c. The question is not whether Gorsuch is a justice of the peace, but whether he'did the act as such. The recital by the clerk is unfounded from any thing that came from Gorsuch. The clerk might know that he was a justice, but he could not know that he had done the act in his character as such. The recital in the record did Dot exist when the attachment issued or was returned; and the recital in the attachment is unsupported by any thing appearing, and cannot aid the defect. The clerk’s issuing the writ, and stating Gorsuch to be a justice, could not make his illegal act valid. He may have sent his resignation to the executive, of which the clerk had no knowledge, and may not have acted as a justice when he issued the warrant. If he had stated himself to be a justice, then it might be inferred he was what he stated himself to be. 4. No other evidence, but the certificate of the clerk, that the judge had authority to administer the oath, can be received. The act is imperative that it shall not be evidence unless there be a certificate of the clerk that the judge had authority to administer the oath. No admission of the parties can cure the defect. The certificate by the clerk is only that he is a judge, and that to his legal attestations due faith and credit were to be given. He does not certify that the particular act was a legal one. The legal acts which he certified were not those under our laws,' but those .under their own laws, when he acted as judge of that court of which the clerk certified he was a judge. The incident of administering an oath does not necessarily follow the office of a judge. It is specially given under particular acts of the legislature.</p>

Appeal 'from Baltimore County Court. This .was an action‘ for a trespass committed on a tract of land call ed r IIvPCleUan’s First Venture. The general issue was plead-jed, and plots were made under a warrant of resurvey is-I sued for that purpose. 1. The plaintiff (now appellee.) read in evidence at the I trial, the patent oí Mf Clellrn’s First Venture, surveyed on I the 20th of March 1776, for, and patented to him, on the 14th of January 1809.

Ejectment on a joint demise to recover the following tracts of land, viz, The Garden Recovered, Denehworth and WestaPs Resurvey. The case was this: Richard Jacobs, son of Joseph, beIng seized in fee of the lands in dispute, on the 2d of Ja-nnary 1783, by his last will and testament devised the same tobe equally divided amongst his three children, Joseph, Dorsey and Rachel, and their respective heirs, ever.

This was an action of replevin, and at the trial in the county court in April 1809, the plaintiff, (now appellant,) offered in evidence, that one J. M. Minor, residing in the city ot Baltimore, and carrying on the business of a merchant, was the owner of the goods and merchandizes mentioned in the bill of lading herein after mentioned; and being such owner, ton the 9th of January 1807, shipped them at the port Baltimore, on board the schooner Eagle, commanded by JD.

The aPPeant being the proprietor of all the lands around the public square in the city of Baltimore, as located on the several plots exhibited in the cause, and also of the grounds arounc' ^10 scluare south of the public square, had, by deeds to Goldsborough and Paca, appropriated the square to public uses, and had declared and evinced ^,e same 'n other contracts and acts, and particularly in plots which he had caused to be made of his property, and plots had been copied…

<p>so>^heinotepro,wa5 b¿ B>1 £» whi endorsed it to E — Heldt m an ac-^at^iíe hand-writing; of e should be proved.</p> <p>Where there was provisory note,can ¡¡.tom fide actionwiltagaimt</p> <p>promissory notéis nes“0SPanStion¿n gJíL'íhepíytej^ prove that the note rioafwwsiaerMionl</p>

<p>Appeal from Queen-Anne’s County Court. Ejectment lor a tract of land called Wilson’s Adventure. Plea, the general issue. °</p> <p>At the trial the plaintiff read in evidence a grant to John Wilson, and Ann his wife, for Wilson’s Adventure, dated ,, A,y c * i _ i ji_ a . i_i .. ._i_ x. ' the 4th of July 1752, and thence deduced a regular title to Clement Sewell, deceased; and proved that said land laid off as dower to Cornelia, his widow, the lessor of the plaintiff, who after the death of Sewell intermarried John Sotheren, who is also since dead. The defendant then read in evidence a record of a judgment obtained by Duhamell, administrator of Wilkinson, against Cornelia Sewell, executrix of Clement Sewell, in Queen county court at Mav term 1799; and of a writ of fieri fa cías issued on said judgment, returnable to October term 1799, and which was returned Nidia Bona. Also a record of a judgment obtained in the name of the state, for the use of Jiuhamell, administrator of Wilkinson, against John Sothe ren, and Cornelia his wife, at May term, 1801, in an action brought on the testamentary bond executed by the 8a*d Cornelia, then Cornelia Sewell, with James O’Bryan and Samuel T. Wright her sureties. Also a record of a judg-nient recovered in the name of the state, for the use afore said, against, Samuel T. fl right, at the same term, in an action brought on tire same bond. Also ot a writ of facias issued on the judgment against Sotheren, and wife, returnable to October term 180!, and the return of Pona thereon. Also of another writ of fieri facias issued on the judgment rendered against Sotheren and wife, and endorsed for the use of Samuel T. Wright, returnable to May term 1802, and the return thereof by the sheriff, tliat on the 50th of,April 1802, he laid the same on, and had seized and taken a tract of land called Wilson’s Adven-v ture, assigned to the said Cornelia, in lieu of ail her dower in the lands of her late husband Clement Sewell, and caused the same to be appraised, &c. which land remained in the hands of the said sheriff unsold for the want of buyers. &c. Also of a writ of venditioni exponas, returnable to October term 1802, commanding the said sheriff to expose to sale the said land, &c. and the return thereof by the sheriff that he did, on the 16th of October 1802, after due notice given, expose to public sale the said land, and that the same was struck off to Samuel T. Wright, for the amount of the debt, interest and costs, he being the highest bidder The defendant gave no evidence of an assignment of the said judgment by Jiuhamell to Samuel T. Wright, fie then read in evidence a deed from James R. Pratt, the sheriff, to Samuel 7\ Wright, for the land so seized and taken and sold as aforesaid, dated the 9th of August 1803. And it was admitted by the plaintiff that Samuel T. Wright died in June 1810. He also read in evidence a deed for the land from Samuel T. Wright to William T. Wright, dated the 23d of April 1804. Also a deed for the same land from William T Wright to the defendant, dated the 23d of December 1806. The plaintiff (hen read in evidence a record of a writ of fieri facias, issued on the judgment herein before mentioned, to have been obtained against Samuel T. Wright■, returnable to October term 1801, and the return thereof by the sheriff, that on the 6th of November 1801, he laid' the same on 50 acres of land, part of a tract called Forlorn Hope, and caused the same to be appraised, &c. which land remained in his hands unsold for the want of buyers. Also the docket entry, by which it appeared that the said writ of fieri facias and return had been quashed by order of court. The plaintiff further read in evidence the record of a second writ of fieri facias, issued on the last mentioned judgment, returnable to May term, 1802, of which said writ no return was made by the sheriff. Also the docket entry, by which it appeared that the same was entered “satisfied plaintiff, says attorney and sheriff.” The plaintiff then proved by T. Murphy, clerk of Queen Anne’s county court, that the said entry was made in the hand writing of Samuel T. Wright, who was at that time clerk of the said court. He also proved by Duhamell, the plaintiff in the aforementioned actions, that immediately after the quashing of the execution before mentioned, as having been issued against the said Wright, he received from Wright a part of the said debt, and that he received the residue before the next succeeding term of the said court. He. then prayed the court to direct the jury, that if they should be satisfied by the evidence that the debt due as aforesaid was paid by Samuel T. Wright, the surety of Cornelia Sewell, before the sale of the land claimed in the declaration, under the fieri facias and venditioni eocponas issued in the name of the state for the u«e of Duhamell. administrator of Wilkinson, for the use of Samuel T. Wright, that the sale was irregular, and that the defendant’s title under it cannot be supported. But the Court, [Earle, Ch. 3. and Purnell, A. J.] being of opinion, that notwithstanding an execution has been satisfied before sale under it, and that this satisfaction appears of record, a sale afterwards gives the purchaser a good title, unless the defendant moves to quash the writ on its return, refused to give the direction prayed. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.</p> <p>The cause was argued before Buchanan, Johnson, MarTin, and Dorsey, J.</p> <p>contended, that the surety who paid the money, having omitted to take an assignment of the judgment against his principal, under the act of 1763, ch. 23, is precluded from availing himself of that judgment. To show that advantage may be taken in an action of ejectment of the defects in ii.c proceedings tinder which the partios claim, tie referred to Pu1íet¿ vs. Purhcde, 1 Vent. ¿,59. tí. C. 2 Salk. 563. Tidd’sPr. 434 filwi-ford vs. Nedhain, 1 Lev. 560. Jltinn Eject. 110^ At com-raon law a surety paying the debt has no other remedy to recover it from the principal, than an action for money laid out and expended. That is the only remedy, except tinder the ad of 1703, ch. 23, and that act not having been pursued the party cannot avail himself of the judgment against the principal so as to issue an execution thereon for his use. If the regularity of the execution ought generally to be called in question on its return, yet as the lessor of the plaintiff was then married,her coverture was a suf-fii lent legal excuse for the omission to do so in this instance, 2 Com. Dig. 503. ! Blk. Corn. 442. Rolles Jlh. 851¡. 852; and Co Lilt. § 534.</p> <p>contended, that the execution issued regularly, and was in all respects formal; but that if it were irregular, the. sale, under it is valid. Tidd’s Pr. 956 Jeanes vs. Tfiíkins, t Vss. 195. Eyre vs. Jfoodfme, Cro. Eliz. 273. ¿dinner and Luddington’s case, 3 Leon. 89.</p>

<p>rióse of lj“ye™£¡íe w»4 pertj^aUegmB8»t hetoo’u uasa <ih« tress for a certain sum for rent due to [Á ‘á® mount himfkuJ ’he*»»* ftr the .aid rent,-, Óif S^re™”* “ ‘p® who niad<'tlin.0s“¡£ ti.ath- did or did nos owe any rent, but requested JD to take other property instead of the negroes, which was refused. — Held, that the evidence was not suN iieieni to prove that any rent was due, lor which a distress could be jaadoj though it would be sufficient to shew that rent was due by the plaintiff</p>

<p>Appear from Baltimore County Court. Assumpsit against the defendant, (now appellant,) and others, as com-moil carriers, for negligence, &c. The other defendants were not arrested. Plea, non assumpsit. The facts agreed upon were these: This suit was brought against the defendant, J. IT. Barney, and others, to recover the sum of gG27, with interest from the 9th of January 1813, they being on and before the 8th of January 1813, the owners and proprietors of a line of stage coaches running between Baltimore and Philadelphia, for the transportation of passengers, and goods and merchandize for hire. The plain itffs, (the appellees,) by their clerk James C. Morsell, did on the 8th of January 1813, deliver a case of Senshaws at the mail stage office in Baltimore, kept by the defendants, tobe transported to Philadelphia by the defendants, by means of the said stage coach line; that the case of shaws was of the value of 8627. At the time of delivering the case at the office, the same was entered on the way bill for transportation by the clerk then in the stage office, who entered the case for delivery at Philadelphia to Weems &• Benson, and for the transportation and delivery ot which, the defendants were to receive a reasonable hire or compensation, the amount of which was entered on the way bill. Shortly after sending the case of Senshaws, the plaintiffs received a letter from Weems & Benson, informing them that the case had not come to hand, and at the same time acknowledging the receipt of a letter and voice, sent by the plaintiffs by the same mail which should have carried the Senshaws. The case was never transported and delivered at Philadelphia by the defendants, r r j nor was the same ever heard ot, or accounted tor, by the defendants, since the delivery thereof into their possession at the stage office in Baltimore. That the following ad vertisement, to wit: “New Line Expedition — Summer Es tablishment, through in one day. The new line Expedid - on will commence her summer establishment on Sunday the 15th inst. (March,) by starting from the Fountain Inn, Light-street, at 3 o’clock A. M. breakfast at Havre de Grace, dine at Hilmington, and arrive at an early hour in the evening at Philadelphia. Fare and allowance of bag gage as usual. All baggage to be at the risk of the owners thereof. United States mail stages start as usual from the Fountain Inn. The Eastern mail at 3 o’clock P. M. All the baggage and the Southern mail at 6 o’clock A M. over 20 lb. will hereafter positively be charged, and be at the risk of the owners thereof. John II. Barney,” ¡k.c. was published in the different newspapers in the city of fíalti-more, and was in the knowledge of the plaintiffs previous to the Stb of September 1813. No money or hire was paid at the time of delivering the case of Senshaws; but the hire or reward was entered on the way bill at the time the said goods were entered for transportation. The county court gave judgment upon these facts for the plaintiffs; and the defendant appealed to this court.</p> <p>The cause was argued before Chase, Ch. J. and Buchanan, Earle, Johnson, and Martin, J.</p> <p>cited Janes on Bailment, 102, 106. Laws of Carriers, 11, 25. Titcli-burne vs. White, 1 Sira. 145; and Clark vs. Gray, 4 Esp„ Rep, 177.</p>

Apícear from Baltimore County Court. Jissumpsit for the use and occupation of a house for three months. The ge-Heral issue was pleaded. On the trial the plaintiff^ (now ap-pellee,) gave in evidence the following contract, under seal, between him and a certain John Sands, for the letting of the premises in the declaration mentioned. “Agreement made between Wm. Hawkins and John Sand.s, this 2d day of April 1810. That the said Wm.

Assumpsit. The declaration contained three counts. Held: that the action was not maintained, as the consideration does not appear on the face of the writing. Here the paper appears to contain no consideration for taking Peter Newkirk’s bargain, but none was necessary. This case appears to be subject to the absurd-conclusion before noticed, as resulting icom Egerton vs. Mathews.

<p>Appeal from the Court of Chancery. The bill in case was filed by the complainants, (now appellees,) against the administrator and representatives of J. M. Dennison, to obtain a decree for the sale of a house and lot in the c ¡ • ty of Baltimore, alleged to have been mortgaged to them by J. M. Dennison, in his life,-time, to satisfy a.debt due from Dennison and his partner, Thomas L. Savin The substance ot the case, as disclosed by the record, is this— Denrdson & Savin were partners in trade in Baltimore; as were also the complainants. They agreed mutually to endorse for each other, to obtain discoums from the and at the same time agreed mutually to secure each other, an d for this purpose Dennison made a mortgage of the premises in question to the complainants; and Fulton, of the complainants, made a mortgage of a house and lot he held in Baltimore to Dennison & Savin. These transactions took place about the 31st ol July 1811. Each party reciprocally endorsed for the other to a considerable extent; and finally, upon the death of Dennison, which pened in August 1813, the complainants took up the paper they had endorsed and loaned to Dennison §• Savin, to the amount of §4462 73. William Woods & Westly Woods, vvere also partners in trade, under the firm of Woods & Son, and had also loaned and endorsed for Den-mson fy Savin to a sum exceeding S300Ü, to secure which Denmsnn had agreed to mortgage the aforesaid house and jnt, and had giver, directions to prepare a mortgage to that «fleet a short time before his death, but he was taken ill and died before he could execute if. Neither the gage from Dennison to the complainants nor from Fulton io Dennison & Savin, were recorded. It was alleged by the complainants that this was the result of forgetfulness and inattention, and proceeded from no fraudulent intention. It was also alleged by the defendants, that it was mutually agreed, at the time of executing the mortgages, that they should not record them. Dennison died intestate, leaving a daughter, Sarah, the wife of T- L. Savmt and a son named Marcus. Woods was the administrator of Dennison, and contended that the complainants were only entitled to come in pari passu with the other creditors. The mortgage premises were leasehold.</p> <p>Kimcy, Chancellor, {July term 1816,) decreed, that the premises mentioned in the mortgage from Dennison to the complainants should be sold to satisfy the debt due to them. From that decree the defendants appealed to this court.</p> <p>The cause was argued before 'Buchanan, Johnson, Mab.-.tin, and Dohsey, J.</p> <p>The mortgage was not recorded, and the bill prayed for a sale of the mortgaged premises. The chancellor, without directing the mortgage to be lecorded, decreed a sale of the property to pay the debt, to secure the payment of which it was executed. The only ground on which the complainants could come into a court of chancery was under the actof 1785, ch. 72, s. 11, to have the mortgage deed recorded. A fraud was committed on the creditors of Dennison, and of Dennison & Savin, by withholding the mortgage from record.</p> <p>The only question is, whether, though the deed was not recorded, the complainants have not such an equitable lien on the property against the heirs.of Dennison as to.be entitled to have it applied to the payment of their debt? By' the general law of the court of chancery, previously to the year 1785, this mortgage would be considered a contract in equity which the court could decree upon on . equitable grounds, as a particular lien. The court would have viewed it as a mortgage of a particular debtor, and liable to every equity to which the mortgagor would be liable.Here the mortgage not being recorded, was not owing to any fraudulent intention. It was not incumbent on the complainants to prove that there was no fraud, because none was alleged in the answers. Is the mortgage not oil a meritorious consideration, and the peculiar favourite of the court of chancery? But it is said the complainants have lost the effect of their mortgage in a court of equity, because it was not recorded. The mortgage not being recorded is not valid in point of law. How is the defect to be supplied, but by the court of chancery, which will give efficacy to it, and can do so by considering it as a contact. Every mortgage is a contract, even without cove-Bants, but here there are covenants. It isa mere agreement,and as .such a court of equity can carry it into effect. The act of 1785 does not interfere with the general powers of the court of chancery, or to any exclusive equity which it possessed before. It only restricts the particular case legislated upon by the act. To show what was the powers of the court of chancery in a case similar to the present, and the nature of special liens, they referred to Pow. on Morlg. 460, 469. Burn vs. Burn, 3 Fes. 573. Notice to general creditors was not necessary. Pow. on Mortg. 585, 586. There is no allegation in the bill or answers that Dennison fy Savin were insolvent, or that Dennison was insolvent. The creditors are not, therefore, made parties, and cannot be affected by this decree. The bill and prayer in it are that the particular piece of property mortgaged should be made liable to pay the particular debt.</p> <p>Winder, in reply, referred to 1 Madd. Chan. 329. Lloyd vs. Collett,4 Bro. Ch. Rep. 469j and S. C. 1 Atk. 12, (note.)</p>

<p>Appeal from the Court of Chancery. The bill was filed by the appellees against the appellants, and stated, that Elijah Brown, by his last will, dated the 25th of August 1809, devised his land for three years to Obadiah Smith, one of the defendants, and at the expiration of three years, the land tobe sold by his executor, and the proceeds, after payment of debts and legacies, to be divided among his brothers and sisttrs named in the will. The executor was empowered to convey, and Obadiah Smith appointed executor, The testator died on the 23d of September 1809, Ruth Curnns, one of the defendants,, was a sister of the testator, and entitled to a share of the surplus, after paying debts and legacies. She was not a party to the original bill. By advertisement dated the 29th of Augusi 1812, inserted in a newspaper in Frederick-town, the executor offered the land for public sale on (he 28d of September, if not sold'before at private sale. On the 12th of September 1812, Smith entered into articles with Philip Miller, another of the defendants, for the sale of the land'at private sale, the first payment to be made, and possession given, and the land conveyed on 23d of September. YVhen the .three years expired Smith married the only daughter of Philip Miller, the vendee, and has.continued to occupy a part or perhaps the whole of the land since the sale. The bill alleges that this sale was made by the executor in violation of his trust, — that it was sold too soon — that the terms were in violation of the will — and that the land was sold to Mil-ter by the executor, for the purpose of getting it conveyed to himself, or with an understanding that he was to remain in possession, and to inherit it in right of his wife. That others would have given more for it if a fair opportunity liad been afforded then, and that Smith and Miller had combined to injure and defraud the complainants. The answers of Smith and Miller both state, that the sale was fair, and denied all combination. Ruth Currens, who was entitled to a share of the proceeds of the sale after the payment of debts and legacies, was not a complainant or defendant. A commission to take testimony issued on the 15fh of June 1815, and was returned to February term 1816. Several of the complainants, after the sale, received their proportions of the proceeds. At July term 1816, the case was set down for hearing at the next term. On the hearing at December 1816, the Chancellor suggested that Ruth Currens ought to have been a party; and at December term 1816, leave was given, on petition of complainants, to amend the bill by making Ruth Currens a party defendant which was done; and process prayed accordingly, at February term 181/. At the same term her answer was put in by consent, admitting the sale and purchase, as stated in the bill. On the day following, the Chancellor passed his decree setting aside the sale, and appointing a névt trustee to sell. From this decree the defendants, Smith and Miller, appealed to this court.</p> <p>The cause was argued befóte Buchanan, Johnson,Martin, and Dobsky, }.</p> <p>contended, 1. That the evidence did not support a charge of fraud in the sale, 2. That Ruth Currens was not made a party until after the testimony was taken; and as the testimony could not therefore be evidence against her, it could not be used against the other defendants for her benefit.</p> <p>On the second point he cited Miff. 16, 17. Cooper's Plead. 330. Turner, et al. vs. Hoi thington, et al. in this coun at June term 18J7; and the act of assembly 1785,. eh. 72. 14.</p> <p>cited 1 Harr. Chan. Prac. 61, 109. IH). Hind's Prac. 25, 378; and Clayton, et al. vs. J.Inderson, in the court of chancery, where the .rule of practice respecting parties was, he said, established by the Chancellor.</p>

Assumpsit for Pa'^’ laid out and expended; for money lent and advanced, and on an insimul computassint. In the. writ summons which issued, the defendants, (now appellants,) The President -and Directors of the Marine Bank o? Baltimore.

<p>A witness is bound to ,answer a question touching the issue in an action at law, in which he is not a party, although it may establish, or tend to establish, that he owes a debt, or otherwise may subject him to a civil suit, or a bill in chancery,</p> <p>He is not obtig cd to answer ques* tions which may subject him to a -criminal prosecution, or to a penalty»</p>

This was an action of assumpsit, brought on the 23d of July 1812, by the surviving partner of J. and 6. Mistan, (whose administrator the plaintiff in error is,) against the executor of the surviving partner of T. and A. Contee, (the defendant in error.) The declaration contained five counts. The first for ar-tides properly chargeable in account. The second for mo - ney laid out, expended and paid. The third for money had and received.

Defence was taken on warrant,and plots were returned. ’ r I. At the tria! the plaintiff, (the appellant,) with other testimony, gave in evidence the patent of the tract of land called Smith's Forest, surveyed the 6th of March t694 for, and granted to, Philemon Smith, on the 10th of November 1695, and described as “lyiug on the south side of Curtis's creek, beginning at a bounded pine standing in the line of a parcel of land formerly laid out for Maurice Baker, and running…

This was an action of trespass on the rase, in the nature of toaste, brought by the plaintiff, (now appellant,) for waste destruction done to het house in the city of Baltimore, during the time that the defendant, (the appellee,) was lessee to the plaintiff of the premises. The contained two counts.

An actiOn of trover was brought on the 15th of June 1812, for the ° ’ value of certain negro Slaves, and a spinet. The deelaration contained two counts.

Ejectment in Baltimore County Court for a lot of ground in the city of Baltimore, No. 642, being part of a tract of land called Lunn’s Lot.

This was a petition for freedom by the appellee. At the trial she offered in evidence a bill of sale, oi deed of gift, from Morgan Bradshaw, to his sister Sarah Bradshaw, dated the 6th December 1793, duly acknowledged and recorded, and whereby, in consideration of the love, good will and affection. which he had and did bear towards his said sister, he gave and granted unto her, and to her lawful issue forever. a negro girl called Lish, about eight years old, with a proviso,…

A writ of facias issued on the 29th of April 1816, against the appellant, as executor of Philemon Ilamhleton, deceased, on a judgment obtained in that court by the appellee against the deceased in his life-time, in November 1811. defendant, (the appellant,) plead three pleas. 1. JVe ques executor. 2. No assets; and 3. Plene administravit. The plaintiff, (the appellee,) replied the general turns to each oi the pleas, and issues were joined.

Ejectment for a tract of land called Painter’s Best. The defendant in the court below, (the present appellant,) took defence upon warrant, and plots were made.

A pi’eau from Baltimore County Court. Assumpsit on a promissory note, by the endorsee, (the appellant,) against last endorsor, (the appellee.) The declaration contain* e(l two counts, one on the note, and one for money lent and advanced.

The case was this: — FrcmcisT. Cle-meats, (the husband of the appellee,,) by his will dated in disposed of the whole of his estate, both real and personal. A part of the real estate he devised to his wife, but bequeathed no portion of his personal estate to her. She renounced the will, and by her petition to the orphans court, claimed one halt of the personal estate, the testa-having died leaving no child or descendant. The or-court decreed in her favour.

Assumpsit brought on the 17th of July 1809, by the plaintiff, (now appellee,) as surviving partner oí S. & J- Smith, against the defendant, (the appellant.) The declaration contained counts for money had and received — for money laid out and expended, and on an insimul eomputassent.

Ejectment for a tract of land called MundelVs Survey. This case was formerly before this court on an appeal by the present ap pcllee, and the judgment of the court below was reversed, and the recoid remitted under a procedendo, directing a new trial. [See 8 Hair. & Johns. 462.J The (now appellant,) took defence, on the plots returned, for all the land included in the plaintiff’s pretensions, and which is included in the deed from Ninian Beall to James Ran-ton, dated the 15th…

Ahusax, from Baltimore County Court. dlssumpsit brought by the endorsee, (now appellant,} against the viving drawer* (the appellee,) of a promissory note. The declaration contained the usual counts, and the general issue was pleaded. 1. At the trial the plaintiff gave in evidence the following promissory note: “Baltimore, 6th March, 1813. Dollars 4750.

The bill was fib ed by R. Chamberlaine, G. R. Hayward and W. Hayward, of whom If. Hayward is the only survivor, (now appel-against D. Carroll and C. Carroll of Carrollton.

The bill states that *7. and C. Mistan, with other creditors of Jt. Conlee, deceased, filed their bill against his heirs for a sale of his estate for payment of his debts, and that a decree passed for such sale. That Worthington, one of the def¿ndants, (now one of the appellants;) was appointed trus-teeto make the sale. That the trustee sold the wholeof the real estate amounting to §7005.

Appear from Charles County Court. jSsmmpsit brought on the 12th of August 1815. 'I he declaration contained counts for sundry matters and articles properly chargeable in account; for money paid, laid out and expended; for pasturage for horses, &c. Quantum meruit for matters and avtides properly charged in account, sold and delivered, and pasturage furnished, &c. For the hire of negroes, &c. and on an insimul compulassent with the administratrix, and her promise to pay, &c.…

Assumpsit on a promissoiy note drawn by S. If. Beck on the 14th of March 1810, for gl 569 27, payable 21 months after date to the defendant, (now^ appellant,) or order, and by him endorsed to the plaintiffs, (the appellees.) The dc■ claration contained two counts; the first on the note, in which the demand is stated to have been made on the drawer, “afterwards, and after the end apd expiration of the said 21 months in the said note mentioned; that is to say, on the 14th of…

<p>Appeal from Charles County Court, Debt, brought bn tho 28th of Juné 1813, on an administration bond, executed to the State on the 8th of March 1800, by Henry Stew* art, as administrator de bonis non of Joshua Stewart, with Leonard J. Ferrell, and the defendant, (now appellee,) his suretiesl The defendant pleaded genera! perfm manee, to which there was a replication of nonperformance, and assigning as a breach, that on the 27th June 1799, the intes-tafe was indebte.d to Millard and Waring, at whose instance and for whose use the action was brought, in the sum of ¡fil 5 18 j 0, for goods, before that time sold and delivered, which he assumed and promised to pay, &c. and that neither the intestate in his life time, nor the administrator de bonis non since his death, had paid, &c. Averment that assets sufficient to pay, &c. came to the hands the administrator de bonis non. The defendant rejoined non assumpsit. He also rejoined the acl of limitations. Xo the first rejoinder issue was taken; and to the other there was a demurrer, and joinder in demurrer* I lie County Court overruled the demurrer; and the verdict on (he issue in fact, and judgment being; for the defendant, ,, . , x i ° this appeal was prosecuted,</p> <p>The cause was argued in (his court before Buchanan* w-, , ° T • ¿ARLE, and DORSEY, J. ,</p> <p>The only question is, whether or not the defendant below could rbjoin two dis-matters to the replication. It is notwiihin the statute of Anne. It is a departure from the plea of perform-trarren vs. Ivie, 9 Sira. 908. Besides, this rejoin* de.1’ tenders an issue, instead of concluding with a verifica-(ion«</p> <p>1. The replication gave the cause of action, and therefore limita-could not be pleaded^ except by way of rejoinder. 2.. There was no non esl on a capias ad respondendum against administrator, ormdla bona on fieri fucias returned be-tore the action was brought; and therefore the plaintiff has shown no cause of action.</p>

Aí’peai. from the Court of Chancery. On the 11th of September 1816, Araminta Chew, and others, (the appel-lees,) by John Davis their next friend, filed a petition against the heirs and devisees of Richard Darnall, deceased, stating that the said Darnall, on the 10th of May 1805, executed and acknowledged a deed of manumission, by the petitioners were manumitted from slavery.

Jonathan Hick-having been regularly declared a lunatic, and While, Appellee, appointed his trustee, the following order was passed on’ the 28th of October J S02, by J Hanson, Chancellor.

On the 12th March 1814, Benjamin D. Clarke, and Sarah his wife, and Jlobert Fieldhall, filed a petition against the children and heirs at law of Richard Dorsey, stating that Yieldhcdl, being seized in fee of a tract of land called Nor-wood's Fancy, died intestate, and without issue, leaving Benjamin, Élizabeth, Sai ah, and Robert Fieldhall, hisbro-thers and sisters, his heirs at law; that Elizabeth intermarried with Stephen Joyce, and is since dead, leaving no issue, and…

<p>Appeal from Montgomery County Court. This was a sPecial action on the case to recover damages, for fraud, an<^ ra'srePresentat'on’ vvl)ereby the plaintiff, (now appellee,) was induced to sell certain slaves for a Jess price than they were worth. The defendant, (the apPe^allM . pleaded not guilty. At the trial the plaintiff offered evidence to prove, that some time in the spring of 1816, the defendant came to his house, bringing w*^1 him a stranger, (who he afterwards understood was named Nixon,) and the defendant applied to the plaintiff know if he had not a negro woman to sell, stating that he wished to Purebase. The plaintiff then asked the de» fendant if he wanted the woman for his own use, (the defendant being proved to be living at Montgomery court-h°uses and about a mile from the plaintiffs residence,) the defendant replied that he did. Upon seeing a woman, the defendant asked the price, and the plaintiff said §300, wkich the defendant said he thought too high. The plaintiff then said he had another, with a child about six years old, which lie would show him, and would sell for §400. seeing them the defendant asked if he would sell them all three, and what would be his price. The plaintiff replied §700, and upon the defendant’s objecting to the price, the plaintiff said as the defendant would take them for his own use, and the negroes were willing to go with him for that purpose, (the negroes having expressed willingness,) he would sell them lower on that ac‘.count, and would take §675. The defendant then .said that the person present was a friend of his, residing in Washington ciry, and wanted one of them for his own use, and that he would take one, and himself the other, (as he wanted but one,) at that price. That Nixon then offered to give his bond, obliging himself to keep the woman for his own use, and from being temoved from the city of Washington, .where he lived. The plaintiff replied that a bond w as not necessary, but that if the defendant would be responsible, and engage to that effect, he would be satisfied. That he abhorred the practice of selling to slave-dealers, and would not so sell the negroes for any consideration, nor dispose of them except with the understanding that they were to be kept in the neighbourhood. The defendant then declared that he did so engage, and that he would keep the one, and Nixon the others. Upon this the bargain was made, the money paid, and the negroes delivered to the defendant the next morning. The plaintiff then proved that this Nixon was at this time a slave-dealer from South Carolina, where he resided, and was known to the defendant to be so. That upon the delivery of the ne-groes to the defendant, they were all immediately carried off’ out of the state by Nixon, and removed to Carolina. He further proved, that shortly afterwards the defendant acknowledged that he had carried Nixon to the plaintiff, and passed him off on the plaintiff for a friend of his ill Washington, and had induced the plaintiff to sell the said negroes to him, under the understanding that they were to be kept by him and Nixon in the neighbourhood, and boasted of the manner he had managed the affair for Nixon, wdiose agent he was, and from whom he had received §40 for his agency; that when they saw the negroes, Nixon fixed a price on (hem, and told the defendant that he might get them as much lower as he could, and he would allow him the difference. It was further proved by the plaintiff that these negroes, (one of them about 16 and the other 20 years old.) were born and raised in his family, and one of them had a father and mother belonging to him, and then in his service. And the plaintiff further proved, that a few days after the sale he called on the defendant, and reproaching him for his conduct, said he would return the money, and demanded the negroes, which the defendant said the plaintiff might get, but they had been then removed from the city of Washington. That the father and mother of the girl so sold, when they heard she had been carried off, were in great distress and trouble, and for sometime unable to do their usual work in the plaintiff’s service, though they were not confined by sickness. On this evidence the defendant prayed the court to instruct the jury,'that the plaintiff was not entitled to recover. But the Court, [lüdgely, A. J.] refused to give the instruction. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.</p> <p>The cause was argued before Buchanan, Earle, Johnson, and Dorsey, J. by</p>

Jlssumpsit for money arising from the sale of goods delivered to be sold, &c. Plea,t Non assumpsit.

Assumpsit. The declaration contained two counts; the first upon an express contract to pay rent, and the other (or use and occupation, The defendant, (now appellant,) pleaded 1.

<p>. Wind&a, for the Plaintiff, obtained a rule on- the sheriff Washington county, to return the writ of fieri facias, ¡gSue(l in this case, by the 18th-instant. The time having expired, and no return being made, he moved the court for judgment against the sheriff under the aqt of 1794, ch. 54* S 1, 7 y</p>

<p>Appeal from Charles County Court. Assumpsit. One count for sundry matters properly chargeable in account, and another count for use and occupation of a farm by one Aquila Franklin, &c. The general issue pleaded. At the trial the plaintiff, (now appellant,) proved by a competent witness, that in the year 1815 he called upon the defendant, (the appellee,) and shewed him the following account: j</p> <p>“ Dr. To Margery Fowke.</p> <p>To the rent of the tavern and lot at the /AYi</p> <p>Top, for the year 1812, at £40 £40</p> <p>To the rent of ditto ditto do. for the year 1813, at £40 £40</p> <p>£80</p> <p>Supra. Cr.</p> <p>By an order in favour of James Fowke for £15 8 4</p> <p>By an order in favour of Gusts. Brown for £13 8 4</p> <p>By an. order in favour of Gerard Fowke for £13 8 4</p> <p>Balance due £40 5 0”</p> <p>On the account was proof made by the plaintiff's affidavit s>f the justice of the claim, and also an affidavit made by Gustavus Brown, of the account’s being just. The account was passed by the orphans court; which account the defendant acknowledged to the witness was correct* and that he felt bound to pay the first year’s rent, and offered assignments of judgments as payment. If was admitted also that the defendant was bound for the first year’s rent in his individual character, and in his character as administrator for the second year’s rent. Receipts were produced and in proof to shew the payment of one year’s rent for the same sums, and paid to the same persons, as mentioned in the account proved. It was further in proof, that when the last receipt was executed the defendant settled the sum therein specified as administrator. There was no other proof to shew an election on the part of the defendant to apply the payments to the discharge, of the debt due from him as administrator, or to the debt due in his own right. Upon the prayer of the defendant’s counsel, the Court, {Johnson, Ch. J.l instructed the jury, that when the payments were made there was no election on the part of the defendant as to the application of the payments to the first or second year’s rent, nor any evidence to shew' an election on the part of the plaintiff’ as to the applications of the payments; and that the law in such case would make the election, and would apply the payments to the first year’s rent, notwithstanding the evidence herein before mentioned. The plaintiff excepted; and the verdict and judgment being against her, she appealed to this court.</p> <p>The cause was argued before Buchanak, Martin, and Dorsey, J. by</p>

•' Arpe-al from Baltimore County Court. Assumpsit for money had and received, lent and advanced, laid out and expended, and on an insimul computassent. Pleas, the general issue.