Volume 42 — United States Reports

Held: that the instructions of the Circuit Court were correct. A bequest of freedom to a slave, under the laws of Maryland, stands on the same principles with a bequest over to a.third person. A bequest of freedom to a slave is a specific legacy.

Held: at which it .was agreed that certain lands, lying on the eastern waters, should be sold, and, if purchased by the devisees, such purchaser should pay at three equal annual instalments with six per cent., interest from ■ the day of sale, but to bé credited with his proportion of the sales which had there been made, and which Were to be divided among the said devisees.

Held: that the grant had' been made by Governor Coppinger. , To the second objection, it is sufficient to say — that the governor, as.the king’s deputy, was the sole judge of the merits on which the claim is founded, and had undoubted power to reward the merits of the grantee’; so this court has held in ihany cases. 3.

Held: in the case of Caruthers v. Sydebotham, 4 Maule, and Selw. 77, that the master or owner of a vessel trading to and from the port of Liverpool, was not answerable for damages occasioned by the fault of the pilot.

Held: accordingly, that the possession of the defendant was not adversary. But this last case coming before the Court of Errors of New York under the style of La Trombois v. Jackson, 8. Cowen, 589, the judgment of the Supreme Court was unanimously reversed.

Held: and what then ? • What is the language there held by Shackleford? “I consent that, in order to raise a fund to pay me what is yet due, you may sell this land to others; they are to pay for the land to you, not to me, and you are to pay it to me.

This case originated in'the District Court of the United States for the eastern district of Louisiana, was carried, by appeal, to. the Circuit Court, and finally brought here. There was much contradictory evidence about some of the facts. Those which were not dispúted were these : The Harriet, a Ship of about,three hundred tons, sailed from New Orleans for London on the 25th of May, 1836.

Held: that the opinion of the Supreme Court of Alabama certified as part of the record, was no part of ■ it. *102 Speaking of the opinion,,the court says: “Their opinion constitutes no part of the record, and is not properly a part of the case.

Held: that although the officer and jailer might have been excused, if they had pleaded severally, but having joined.in the plea with others who could not justify, they had forfeited their justification.

<p>This was an appeal from the equity side of the Circuit Court of the United States in and for the eastern district of Pennsylvania, and arose upon the following facts.</p> <p>On the 2d of January, 1812, Jonathan Williams and Thomas Morris .(the complainant) purchased from the Bank of North America a parcel of land upon the Schuylkill river, near the city of Philadelphia, for the sum of $80,000;. $20,000 of which was to be cash, and the remaining $60,000 was divided into three payments of $20,000 each, which were to become due on the 25th of March, 1814, 1815, and 1816, respectively. The parties gave their joint and . several bonds for these sums, with a-warrant of attorney to confess judgment, and a mortgage upon the property. It. afterwards appeared that Morris was not exclusively the wner of his moiety.</p> <p>On the 27th June, 1812, Morris gave a power of attorney to Thomas Biddle and Henry Nixon, to manage the property for him.</p> <p>In 1815, Williams died intestate, leaving Henry J. Williams and Christine, the wife of Thomas Biddle, his heirs at law.</p> <p>In April, 1816, Morris and'the representatives of Williams executed a power of attorney to Biddle and Nixon, authorizing them to enter into and take possession of the property, sell or lease it, receive the money, execute deeds, &c.</p> <p>Under this power, they accordingly took possession, and exer-* cised all manner of ownership over it.</p> <p>A great number of' letters between the parties were given in evidence, running from this time to the year 1822, relating tCLthe condition and prospects of the property. One of the bonds had been paid out of the proceeds of sales, and considerable payments made on account of another. The third was wholly unsatisfied.</p> <p>In 1822, Morris, residing in New York, applied to Nixon for a loan, under the circumstances stated so particularly in the opinion of the court that it is unnecessary to mention them here. Nixon declined making a loan, but took from Morris a deed, absolute upon the face of it, conveying the whole of Morris’s .interest to Nixon, and reciting that Nixon had always been interested in the purchase' to the extent of three-sixteenths of the whole, or three-eighths of Morris’s moiety. Nixon then loaned to Morris $5000, for which he .took his bond.</p> <p>The deed also recited that there had been allowed to Nixon tor his agency, the sum of $2000; one-half of which, or $1000, had been paid by the representatives of Williams, but paid’ to Morris; and five-eighths of the other $1000, (or $625,) were justly chargeable to Morris; thus bringing Morris in debt to him $1625, which was released in the deed. It also contained other recitals, which are mentioned in the opinion of the court.</p> <p>In 1836, Morris filed a bill on the equity side of the Circuit Court of the United States for the eastern district of Pennsylvania, against Nixon and other parties, alleging that the deed was only a security for the money loaned; that, at the time of its execution, there was not, between himself and Nixon, any contract, agreement, understanding, or negotiation for a sale; that Nixon had furnished no account of his agency; and praying for an account and general relief. The parties all answered; and in April, 1841, the Circuit Court, after a hearing, dismissed the bill with costs. The complainant appealed to this court.</p> <p>I. The deed of the 28th-May, 1822, explained by the letter of the defendant, Nixon, to the plaintiff, would constitute per se a mortgage of the- premises to secure the loan for $5000.</p> <p>■ II. The said deed was designed by the parties thereto to secure fhe said loan, and was designed in substance to be a mortgage, assuming the shape of an absolute conveyance, only as a more effectual security for the loan.</p> <p>III. .If said Nixon designed otherwise, yet the complainant was led by his conduct, and by all the circumstances, to consider it a security for -the loan, and it ought to be treated as such.</p> <p>IV. A deed, though absolute on its face, may. be shown, by parol evidence, to be- designed as a security for a loan, or a mortgage, and more especially by written evidence furnished about the time the deed was given, and conducing to show the same.</p> <p>Y. If it should appear that said deed was designed by the parties to be an absolute conveyance in fee, it ought to be set aside, or modified and' converted into a'mere security for said loan. Because :</p> <p>1. ' The consideration therein-was grossly inadequate.</p> <p>2. There was no negotiation for a sale between the parties thereto, either personally or through authorized agents, and no estimate of value.</p> <p>3. The plaintiff, the grantor therein, was not in a condition to deal at arm’s length — being much embarrassed,-in want of money, and ignorant of the condition of- the property — the grantee being a capitalist, having the property under his management, and fully acquainted with its condition and value.</p> <p>. 4. The grantee'did not fulfil his duty as steward and agent in apprizing the grantor, at the time of said conveyance, of the condition and value of said property.</p> <p>5. Undue influence was exercised by the grantee upon the grantor, in pressing upon him a sale to himself in the condition in which said grantor was placed, and in the relative condition in which they stood at the time to- the property and to each other, as lender and borrower, steward and principal.</p> <p>VI. Lapse of time is no bar to the complainant’s equity under the last-mentioned point. Because:</p> <p>1. Such a bar is not set up and relied upon in pleading.</p> <p>2. The influence and control of the said grantee in said deed, over the grantor, and the grantor’s ignorance of the condition of the property, continued until a short time -before exhibiting the bill of complaint.</p> <p>3. The relationship, in which the parties stood -to each other,as steward-and principal, lender and borrower, will prevent the bar from applying in equity to the relief sought-for by .the bill.</p> <p>VII. Lapse of time is not a bar to the complainant’s equity, for a full account and relief in regard- to the' matters arising, as well before as subsequently to the said deed. All which he is fully entitled to. •</p> <p>VIII. - The agreement-, for a conveyance from, the complainant to Maria. Nixon, should be modified so as to embracé only oneéighth of the plaintiff’s moiety of the premises, and she should be decreed to be entitled only , to the net proceeds of said one-eighth part.</p>

This case grew out of that of Peter v. Beverly, which came before,this court in 1836, on an appeal from the Circuit Court of the District of Columbia, in decreeing an injunction on the proceedings of the then complainants, to -sell a part of the real estate of David Peter, deceased.

This case was brought up, by writ-of error, from the Circuit Court of the United States for the- District of Columbia, holden in and for the county of Alexandria.. The facts'in the case, and bills of exceptions,-are stated in the opinion of the courts to which,the reader is referred.' raised the following points. First bill of. exceptions. — There was error in the opinion and instructions of the court. 1.

This was an appeal from the equity side-of the Circuit Court of' the United States for the District of Columbia, holden in and for the.county of. Alexandria. . The facts in the case are fully stated in the opinion of, the court, to which the reader is referred. contended that the decree of the court below was-erroneous, and should be reversed for-the fol-lowing,:among other reasons. 1.

This case was . brought up by writ of error, from the Circuit ' Court for the district of New York. • The plaintiffs in this court, who were also plaintiffs below, were merchants and partners, trading under the name and firm of Bell and Grant,'and resided, in London.- .The action was brought to recover the value, of five several' sets of bills of exchange, amounting respectively to £385, £31S 12s. 6d., £1500, £140, and £3500,'which, it was alleged, were guarantied -by the…

This was an appeal from the Circuit Court of the United-States for the district of Indiana, sitting as a court of equity. The facts are fully stated in the opinion of the court, and also the authorities referred to in the argument. It is unnecessary to -repeat either."

This .case was brought up by writ of error'from the Circuit Court of ."the United States for the southern district of Alabama. On the 16th of January, 1837, the plaintiffs in error executed the following bill. $5000 Wilcox C. ÍT., Ala., January, 16, 1837 Twelve- months-after date, we of either of us promise to pay Montraville D. Taylor, or bearer, the sum of five thousand dollars, value received of him, ds witness our hands and seals.

This case was brought up by writ of error from the Circuit Court of the United States for the western district of Pennsylvania. The facts are sufficiently stated in the opinion of the court. .The.bill of exceptions which.was taken on the trial below was as follows; .

This case was brought up by writ of error, to the Circuit Court, of the United States for the District of Columbia and county of Washington. The case' was this: ..

Held: and so -instructed the jury, that if-they believed that, before any sexual connexion between-the parties, they, in the presence of her family, and friends, *234 agreed to marry, and did afterwards five together as man and wife, the tie was indissoluble even by mutuaf consent.

This case was brought up by writ of' error from' the Circuit Court for the District of Columbia'. At the trial in the Circuit Court, it appeared upon the evidence that the Bank of the Metropolis, one of the banking institutions of the District of Columbia, had been for- a long time in the habit' of dealing and corresponding with the Commonwealth Bank of Massachusetts.

<p>'After pleading the general issue, it is too late to take advantage of'a defect in the writ, or a variance between the writ and declaration.</p> <p>Actions of trespass, except those for injury to real property, are transitory in their character.</p> <p>Where the writ mentions a trespass with force and arms upon the storehouse of the plaintiff and a seizure and destruction of goods, it covers a transitory-as well as a local action.</p> <p>In transitory actions, a venue is laid to show where the trial is to take place. It is a legal fiction, devised'for the furtherance of justice, and cannot be traversed.</p> <p>In such actions, such a venue is good without stating where the trespass was in fact committed, with a scilicet of the county in which the action is brought. In the absence of statutory provisions, the courts in the District' of Columbia must apply the principles of the common law to such actions, the pleadings, and'jhe proofs.</p>

<p>This case came up from the Circuit Court for the southern district of New York, under a certificate of division in opinion between the judges of that court upon the two folio wing.points : •</p> <p>1. Whether the transcript from the books and proceedings of the Treasury, given in evidence.on the part of the United States . to show the indebtedness of Swartwout on the 28th day of March, 1834, on which day the second term of office of said Swartwout expired,' was, in this case, competent and legal evidence for that-purpose..</p> <p>2. Whether the payments made by said Samuel Swartwout subsequently to the said 28th day of March, 1834, should be applied to the discharge of his . indebtedness existing on said 28th day of March, 1834, hr accruing during his second term of office, or whether such payments should be applied to the discharge of his indebtedness accruing after that time.</p> <p>The facts in the, case were as follows:</p> <p>Swartwout was appointed collector at the port of New York on the 1st day of May, 1829; but his proceedings during this,- his first term, have nothing to do- with the present case.,</p> <p>On the 29th of March, 1830,. his second term commenced, and he was appointed-for. four years.</p> <p>On. the 22d of June, 1830, he gave a bond for the faithful performance of his duties, in the mode prescribed By law, with several sureties, one of whom was Henry. Eckfordj whose executors are parties to this suit. The penalty of the bond was #150,000, and -the condition ran, thus: “ Now, therefore, if .the said Samuel Swartwout hath truly .and faithfully executed and discharged, and shall' continue truly and faithfully to execute and discharge, all the duties of the. said office, according to law, then the, above obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue.’’</p> <p>■ Quarterly accounts were rendered to the Treasury Department, • - according to law; but- they continued to. be made out, as they had' been -during his temporary appointment, running from the 1st of January to the 31st of March, from the 1st of April to the •30th of Juñe, and so on. In these quarterly accounts were stated the yarious sums received by him on account of the government, and also the. payments which he had made on behalf of the United States, although it often happened' that the covering warrants from the Treasury, the final vouchers for such payments, were not received in time, to be returned with said quarterly accounts, in which case they were thro wn into the next quarter, when the proper credits were given;.</p> <p>Swartwout’s third tern of office, commenced on the 29th of March, 1834; and the bond which he gave contained a condition similar to- the .one which, has been recited, but Henry Eckford was not .one., of his. sureties. The time, therefore, covered by Eckford was from the 2Sth of March, 1830, to the 28th of March, 1834, inclusive of the latter day.</p> <p>In his accounts for 1834, Swartwout continued to make them ' up for the quarters of the year, as he had done, and his account for .the first quarter was brought up to, and ends on,, the 31st March. No account was filed by him' ending on the 28th of . March. ' The one ending on thé 31st shows- a large balance of “ cash on hand.”.</p> <p>In adjusting this, account, the auditor began with charging Swartwout with the balance as it stood against hihi in the preceding account; then charged him with, all the moneys: which he had. received in that quarter. Haying given him credit for various sums paid into the Treasury, and paid, to individuals under proper authority, Ihe strikes a balance in. favour of the United States, Which is stated.'to consist of bonds uncollected, not due, bonds in suit, general bonds for spirits, wines, &c., and cash on hand;</p> <p>In adjusting, the account for the ensuing quarter, ending on the 30th of June,; 1834, the auditor brought forward -the. entire balancé standing'against Swartwout in the .last account,.and' then proceeded to charge and credit him as before.'</p> <p>■ In April', 1839, these accounts were- re-stated by order of- the first comptroller, so as to make first account end on the'28th of March, 1834, instead of the 31st.' The re-statement begins on the 28th of March, 1.830, and runs through the whole four years of Eckford’s suretiship, ending on the 28th of March, 1834, and show;s á.balance of,cash due to the United States, of $486,455 24 cents.. A certified copy of this paper is. the transcript. mentioned in the Certificate of division of opinion in the court below.</p> <p>The points presented'by the counsel, were — for the plaintiffs:</p> <p>1. That this transcript is competent ¿nd legal evidence to show that Swartwout was, on the 28th. March, 1834; indebted tó the United States.</p> <p>2. That the payments made by Swartwout, subsequent to the. 28th March, 1834, should not be applied to discharge his debt incurred before, but to discharge that incurred after, that date.</p> <p>On the part of-the defendants the points'were as follows: •</p> <p>1. Preliminary references:</p> <p>. 1. The form of the collector’s bonds is prescribed by law:, ailtt expressly assumes the past as well as prospective accountability of the collector. Act 1799, 3 U. S. Laws, 237.</p> <p>2. The law obliged the collector, once in every, three months, and bftener if required, to transmit his accounts, for settlement, to the officers of the Treasury. Act 1799, sec. 21, 3 U. S. Laws, 157; Act 1820, May 15, sec. 2, 6 U. S. Laws, 521.</p> <p>The law also bound him, as a disbursing officer,-to the same duty. Act 1823, Jan. 31, sec. 2, 7 U. S. Laws, 113.</p> <p>. 3. The law required the officers of the Treásury Department to examine the accounts submitted, and to-state,, and certify the balances thereof. Act 1817; March 3, sec. 4,8, and 9, 6 U. S. Laws, 199; and also the references under the preceding proposition.</p> <p>4. The accounts rendered quarterly to the Treasury, there examined, corrected, and returned to the collector,'áre binding upon both parties as to all the items embraced in the accounts and included in thé adjustment at the Treasury.</p> <p>II. Thé. balances in the quarterly accounts are to bé taken as. cash fund's, or cash on hand; if. so, every, consideration, equitable as. well as legal, requires them to be treated as the primary fund for subsequent payments, and these payments to be, applied accordingly;</p> <p>-III. If the quarterly balances are presumed to be arrears, or defaulting balances, nevertheless the mutual rendering 'of acfcounts between the collector and the Treasury Department, to each other, was an appropriation of the payments to the charges, in the order of time in which they stand in those accounts.</p> <p>IV. The sureties in posterior bonds of collectors of the customs have nonequity to bé taken into view, even in respect to an appropriation of payments, by mere implication of law.</p> <p>. V. If the sureties on such posterior bonds should be deemed to have an equity against an application .of payments, made after the date of their bonds, and during the period covered by it, to an antecedent balance, such application might have the effect to discharge such sureties;, the United States cannot, for such a cause, without the. consent of the anterior sureties, recall such application, made by accounts rendered, adjusted, and settled, according to law and long usage, and binding as between the United-States and the collector.</p> <p>VI. The re-statement of the account from 1830 to 1834, made at the Treasury in 1,839, after the rendering and the settling, at the time of the quarterly accounts, was without authority of law, if it was to affect any previous appropriation of payments; if it was not, it was immaterial and irrelevant. It was in every view without authority of law.</p> <p>1. Whether transcript is evidence.</p> <p>2. As to the application of payments.-</p> <p>1. The act of 3d March, 1797, 1 Story, 464, declares that a transcript of the account shall be evidence. It is objected that this is hot such, because the account is re-stated. But if an account has been once stated, why not state it again ? Accounting officers are not judges. Need not re-state, unless some error. Time does, not discharge sureties; United States v. Kirkpatrick, 9 Wheat. Government is not estopped if new evidence be discovered. 1 Domat, Public Law, title 6. An error may be corrected in a patent. Grant v. Raymond, 6 Peters, 241. Where a contract requires to be severed, court will sever it, as with rent. Co. Litt. 742, 215, A; Litt. sec. 244; 1 Roll’s Abr. Apportionment, D. So in partnership cases. 3 Bro. Ch. Cases, 4, 44.</p> <p>As to the second point.</p> <p>. If the opposite doctrine be correct, neither set of securities is responsible, because there is. no default in the second term, and. the first-is paid. 1 Mer. 529, 572. If the debtor does not apply the payment himself, the court will apply.it where the security is most precarious., 6 Cranch, 27. Civil law stated in 1 Poth. on Obligations, 338, ed. of 1826. The creditor may make the application. 4. Cranch, 317. A leading case is. in 7 Branch, 572, but Justice Story dissents from it in 5 Mason’s Rep. 82. Securities only liable for what was actually received'during-the term. 12 Wheat. 509. The responsibility must be severed. 1 Gilpin, 125,</p> <p>Custom has been to .apply payments as to time,-unless something peculiar in the case. Bond of second sureties retrospective; law required it to be so.. Sureties must have lookéd to this, backward as well as forward. Quarterly settlements are required by law. Act of 1799, c. 128, s, 21; May, 1820, c. 625, s. 2; Jan. 1823,c, 138.</p> <p>Collector is obliged to retain money for Various purposes; for example, to pay debentures, &c. The quarterly accounts are settlements, and bind the parties. Act of March 3, 1817, makes it the duty of the government to settle them. Onus is on the government. 1 McLean’s Rep. 493; 9 Cranch, 230, 237. Presumption- is that the accounting officers knew what the collector ought to keep on hand, and allowed him to retain it, aided by his reappointment. . Suppose that it was a debt from Swartwout: has it been paid ? Rule is, that oldest debt is paid first, unless there be some equity. First, the debtor directs; if he does not, the creditor does; if neither does, the court makes the application. 6 Cranch, 9; 9 Wheat. 720; 4 Mason, 333. . In December, 1834, this application was made. Oldest debt most likely- to be lost, and policy of. government is. to throw balances on last securities. Debtor may make the application. 7 Cranch, 575; 9 Wheat. 720; 1 Mer. 604; 3 Sumn. 109 ; Gilpin, 125; 1 McLean, 493. The collector owed no debt until the government called for its money. Even if money had been borrowed from second surety apd paid to government, the payment would have been good. The transcript is not a paper according to layr, because the law meant a copy of what was done, not to make out. something new.</p> <p>Debtor has.a right to make the application. 2Vern. 606. If he does not, the. creditor may, but he must say before any contror versy. 5 Taunt. 596, Either party having declared their intention is bound by it, and cannot change it without the consent of the othér. 4 Cranch, 315. If .neither party make the application, courts will consr.lt the interests of creditor as well , as debtor, because they will apply .if to a debt not bearing interest or not secured, rather than .to one bearing interest or secured. ; In ¿.running account the oldest credits are applied to the oldest debts, and so on, in order of time. 9 Wheat. 720; 2 Strange, 1194; 9 Mod. 427; 4 Mason., 33; 2 Marsh. 319; 1 Mer. 572 — 611; 2 Barn. and Ald. 39; 3 Bingh. 71; 1 Wash. 128 ; 2 Brod. d Bingh. 7; 1 Stark. 122; 12 Wheat. 505; 1 Mason, 323; es, 239; Ambl. 55; 5 Mason, 82; 3 East, 484; 1 Bingh. 452; 2 Barn. and Cres. 265; 2 Maule and Selw. 18; 9 Cranch, 212; 1 Gilpin, 125, 106; Theobald, 221; 1 Law Library, 131, The po wer of the creditor and debtor over payments is the same where there are sureties as where there are none. 4 Mason, 333; 3 Bingh. 71; 9 Cranch, 212. The case in 1 Gilpin, 125, is not justified by either the case in Cranch or the case in Mason. In 1 McLean, 493, the officer was not a disbursing officer, and the bond was not retrospective. Case in 5 Peters, 373, not applicable.</p> <p>Payments in this case were in fact and in law applied to ex-tinguishment of former balances. Law required accounts to be settled quarterly. Every quarter Swartwout made the application, and it must bind. him. So-the government officers, also, by bringing down fresh balances. 3 East, 484; 9 Peters, 12; 1 Mason, 323; 14 East, 239; 8 Wend. 403.</p> <p>Suppose anew person had been appointed who had debited; himself with the balance, and the government had assented to' it; would not this have discharged principal and surety ? and how is it changed if the same man be reappointed ?</p> <p>The question is nofnow, whether a balance can be. shown, but merely whether the evidence is legal; a cash balance* is prima facie evidence of a debt. Every term of office is a separate responsibility, as.to principal and sureties. No matter how the accounts are kept; the law of 1820 cuts through and severs them.- Act of 1840, commonly called'the Sub-treasury Act, declares the appropriation of public money a felony, and such an appropriation to pay an old debt is the basis of this defence.' In 9 Wheat, the bond was given during an executive appointment. The sureties must see that thqir principals settle every four years. Swartwout. was a bailiff or agent, not a debtor. 15 Peters, 432. See 1 Jac. and Walk. 247. An agent who keeps the money in bank is presumed to be using it for his own benefit. 11 Peters, 61. A debtor paying a debt out of his own money has a right ■ to apply it, but not paying it out of another, man’s money. He held the money of the government as a mere bailiff, and had no right to do any thing with it but hand it over.</p>

Held: that one'ihdebted “ in consequence of a defalcation as a public officer; or as . executor,'or administrator^ guardian, or trustee; or while acting in any. other fiduciary capacity,” can be discharged from ail his other debts; and that the less favoured creditors may take all his property, unless the government, ward, &c., see. proper to come in for distribution j .when' the fiduciary claim will also be extinguished.

<p>(This case is similar to that.of. Nelson.)</p>

<p>Where a decree is passed by the court below against ah executor, being the defendant, in a chancery suit, and before an appeal is prayed the executor is removed by a court of. competent jurisdiction, and an administrator de bonis non with the will annexed, is appointed, all further proceedings, either by execution or appeal, are irregular, until, the administrator be malde a party to the suit.</p> <p>If an execution be issued before the proper parties are thus made, it is unau- ■ ’ thorized and Yoid; and no right of property will pass by a sale under it.</p> <p>The- admin'istrator cannot obtain redress' by application to this court, but must first be made a party in the court below, -This may be done at the instance - of either side.</p> <p>After he is thus made a party,'he may stay proceedings by giving bond, or the complainants may enforce the ‘decr.ee, if the bond be not filed in time. ‘</p> <p>It is not clear that a complainant who has appealed from a decree in his favour, in the hope of obtaining a larger sum, can, pending the appeal, issue execu- ' tion upon the decree of. the court below.</p>

moved to dismiss the writ of error in this case, for the -following reasons: 1. Because this court has no jurisdiction on writs of error of any question apparent in this record. 2. Because the record does not Show any question of law to have been decided in the court below, which this court can -revise.' 3.

This case came up by writ of erro'r from the Circuit Court of - the United States for. the District of Columbia,-Holden in.and'.for the county of Washington. The facts were these': ■ On the 4th of February, 1831,- Henry Ashton was appointed marshal of the District of Columbia, and on the 7th executed-a bond for. the faithful performance of the duties,-by himself and' his deputies. There were several securities, among whom was James Williams, the plaintiff in error.

Held: with such security as shall be required and approved of by the said judge: the condition of which bond shall be, that the said debtor shall be and appear at the next Court of Common Pleas for said county, and there take the benefit of the insolvent laws of this commonwealth, and to 'surrender himself to the jail .of the said county, if he fail to comply with all things required by law- to *302 entitle him to be-…

Held: it seems, not to fextend to sales of mortgaged premises under a decree of foreclosure; and the act of February 19,1841, above mentioned, was passed to embrace them.