CHANCERY (Continued).

4. An objection that a bill is multifarious must be made before answer, and can
be tested only by the structure of the bill itself. Ibid.

5. The creditor of a partnership may, at his option, proceed at law against the
surviving partner, or go, in the first instance, into equity against the repre-
sentatives of the deceased partner. It is not necessary for him to exhaust
his remedy at law against the surviving partner before proceeding in equity
against the estate of the deceased. Ibid.

6. Where there were two mercantile firms, and some of the members common to
both, a creditor's bill was not multifarious when filed against the personal
representatives of two of the deceased partners of the two firms, and also
against the surviving partners of one of the firms. Ibid.

-

7. The general principle with regard to injunctions after a judgment at law is this,
that any fact which proves it to be against conscience to execute such
judgment, and of which the party could not have availed himself in a court
of law, or of which he might have availed himself at law, but was prevented
by fraud or accident, unmixed with any fault or negligence in himself or his
agents, will authorize a court of equity to interfere by injunction to restrain
the adverse party from availing himself of such judgment. Truly v. Wan-
zer, 141.

8. Hence, where a party had remained for ten years in the undisturbed enjoy-
ment of the property which he purchased, it was no ground for an injunction
to stay proceedings for the recovery of the purchase-money, to say that the
original purchase was void by the laws of the State, but that he had neglect-
ed to urge that defence at law, or to say that he had heard that some persons
unknown might possibly at some future time assert a title to the property.
Ibid.

9. Such an injunction, if granted, must be dissolved. Ibid.

10. By the laws of Louisiana, where there has been a judicial sale of the succes

sion by a probate judge, a creditor of the estate, who obtains a judgment,
cannot levy an execution upon the property so transferred, upon the ground
that the sale was fraudulent and void. He should first bring an action to set
the sale aside. Ford v. Douglas, 143.

11. The purchaser under the judicial sale having filed a bill and obtained an in-
junction upon the creditor to stay the execution, it was an irregular mode of
raising the question of fraud for the creditor to file an answer setting it forth,
and alleging the sale to be void upon that ground. He should have filed a
cross bill. Exceptions to the answer upon this account were properly sus-
tained by the court below. Ibid.

12. But if the court below should perpetuate the injunction, upon the defendants'
refusal to answer further, the injunction should be free from doubt, in leav-
ing the creditor to pursue other property under his judgment, and also at lib-
erty to file a cross bill. If the injunction does not clearly reserve these
rights to the creditor, it goes too far, and the judgment of the court below
must be reversed. Ibid.

13. In this case, the pleadings and proofs show that a mortgage executed by the
debtor to the creditor was really for an unascertained balance of accounts,
which the sum named in the mortgage was supposed to be sufficient to cover.
Gear v. Parish, 168.

14. As it did not prove to be sufficient, and the creditor obtained a judgment against
the debtor for the residue, the payment of the sum named in the mortgage
was no reason for an injunction to stay proceedings upon the judgment. Ibid.
15. The following principles of equity jurisprudence may be affirmed to be with-
out exception; namely, that whosoever would seek admission into a court
of equity must come with clean hands; that such a court will never interfere
in opposition to conscience or good faith; that it will never be called into ac-
tivity to remedy the consequences of laches or neglect, or the want of rea-
sonable diligence. Creath's Administrator v. Sims, 192.

16. Therefore, where a complainant prays to be relieved from the fulfilment of
contract, which was intentionally made in fraud of the law, the answer is,
that, however unworthy may have been the conduct of his opponent, the
parties are in pari delicto. The complainant cannot be admitted to plead his
own demerits. Ibid.

17. Nor is it any ground of interference when a complainant applies to be relieved
from the payment of a promissory note given under the above circumstances,
upon which judgment had been recovered at law. The consideration upon

CHANCERY (Continued).

which the note was given was then open to inquiry, and it is a sufficient in-
dulgence to have been permitted once to set up such a defence. Ibid.
18. The cases examined, showing how far, and under what circumstances the lia.
bility of a surety becomes fixed upon him as a principal debtor. Ibid.
19. Where the plaintiff in a suit voluntarily abstains from pressing the principal
debtor, but receives no consideration for such indulgence, nor puts any lim-
itation upon his right to proceed upon his execution, whenever it may be his
pleasure to do so, this conduct furnishes no reason for the exemption of the
surety from liability, and especially where the surety had united with his
principal in a forthcoming bond. Ibid.

20. The authorities upon this point examined. Ibid.

21. By the laws of Alabama, an administrator de bonis non, with the will an-
nexed, is liable for assets in the hands of a former executor. Taylor v. Ben-
ham, 233.

22. Where an executor has settled what appears to be a final account, it must be
a very strong case of fraud proved in such a settlement, or of clear accident
or mistake, to make it just to reopen and revise the account after the lapse
of twenty years and the death of the parties concerned. Ibid.

23. Where a person who held land as trustee directed by his will that the whole
of the property that he may die seized and possessed of, or may be in any
wise belonging to him, should be sold, the executors had power to sell the
land held in trust, as well as that belonging to the testator in his own right.
Ibid.

Ibid.

24. The trustee, by his will, having appointed residuary legatees, must be consid-
ered as devising the trust as well as the lands to these residuary legatees,
who thus became themselves trustees for the original cestui que trust.
25. The power in the executors to sell was a power coupled with a trust.
26. It might also be considered as a power coupled with an interest. Ibid.
27. The distinction between these powers adverted to. Ibid.

Ibid.

28. In order to avoid an escheat, and carry out the wishes of the testator, a court
of equity will, if necessary, consider land as money, where a testator, who
is a trustee, has directed the land to be sold, and will direct the proceeds to
be given to the cestui que trust. Ibid.

29. Whether the executor h a power to sell coupled with a trust, or a power
coupled with an interest, the residuary legatees took by devise and not by
descent, although they were supposed to be also the cestui que trusts. Ibid.
30. If, therefore, they were aliens, the land did not escheat on the death of the
trustee, because land taken by devise does not escheat until office found, al-
though land cast by descent does. Ibid.

31. The testator, who held the lands as trustee, having died in South Carolina, the
executor took out letters testamentary in that State, sold the lands which
were in Kentucky, and then removed his residence to Alabama. He can be
sued in Alabama for the proceeds of the lands, because his transactions in
reference to them were not necessarily connected with the settlement of the
estate under his letters testamentary. Ibid.

32. Having sold the lands and received the consideration, he must be responsible
to the residuary legatees. Ibid.

33. An objection that only one executor sold (there having originally been four)
cannot be sustained. Where a power is coupled with a trust, it is only
necessary to show such a case as may, in a court of equity, make an agent
or trustee liable to those for whom he acts. As much strictness is not re-
quired as there would be if the power to sell were a naked one, and not
coupled with an interest or trust. Ibid.

34. A power to sell, coupled either with an interest or trust, survives to the sur-
viving executor. So, also, if all the trustees or executors in such a case de-
cline to act, except one. Ibid.

35. When a sale is made under a will, the omission to record the will does not
vitiate the sale, unless recording is made necessary by a local statute. Ibid.
36. The land being in fact sold by the executor, claiming a right to do so under
the will, and the purchase-money being received by him, he is responsible to
the cestui que trusts for the money thus received. The reception of an addi-
tional sum, as purchase-money, by them, with a reservation of the right to
sue the executor, is not an avoidance of the first sale by the executor. Ibid.
37. But the executor is not responsible for more money than he received, with in-
terest, unless ir case of very supine negligence or wilful default. A claim

CHANCERY (Continued).

for damages would also be subject to the operation of the statute of limita-
tions.

Ibid.

38. If the executor himself did not set up a claim, as an offset, for his personal
expenses, his representative cannot do it, under the circumstances of this
case. Ibid.

39. The cestui que trusts residing in a foreign country, the statute of limitations
did not begin to run until a demand was made upon the executor for the mon-
ey. His retaining it during that time is no evidence that he did not intend
to account for it. Ibid.

40. Although the bill made no distinction between the two characters in which
the executor acted, namely, as executor proper, and as executor having a
power coupled with a trust, yet as no objection was taken in the court be-
low upon this ground, this court does not think that an amendment is im-
peratively necessary. The material facts are alleged upon which the claim
rests. Ibid.

COMMERCIAL LAW.

1. By the laws of Louisiana, a notary is required to record in a book kept for that
purpose all protests of bills made by him and the notices given to the draw-
ers or indorsers, a certified copy of which record is made evidence. M'Afce
v. Doremus, 53.

2. Under these statutes, a deposition of the notary, giving a copy of the original
bill, stating a demand of payment, a subsequent protest, and notice to the
drawers and indorsers respectively, is good evidence. Ibid.

3. The original protest must be recorded in a book. Its absence at the trial is
therefore suficiently accounted for. Ibid.

4. Where a joint action against the drawers and indorser was commenced under
the statute of Mississippi (which statute this court has heretofore, 16 Pe-
ters, 89, held to be repugnant to an act of Congress), the plaintiffs may dis-
continue the suit against the drawers and proceed against the indorser only.
Ibid.

5. When a bill of exchange is made payable at a bank, and the bank itself is the
holder of the bill, it is a sufficient demand if the notary presents it at the bank
and demands payment. Hildebrand v. Turner, 69.

6. If, therefore, the protest states this, and also that the notary was answered that
it could not be paid, it is sufficient. It is not necessary for him to give the
name of the person or officer of the bank to whom it was presented, and by
whom he was answered. Ibid.

7. It is not irregular for two mercantile firms to unite as complainants in a credi-
tor's bill. Nelson v. Hill, 127.

8. The creditor of a partnership may, at his option, proceed at law against the
surviving partner, or go, in the first instance, into equity against the repre-
sentative of the deceased partner. It is not necessary for him to exhaust his
remedy at law against the surviving partner before proceeding in equity
against the estate of the deceased. Ibid.

9. Where there were two mercantile firms, and some of the members common
to both, a creditor's bill was not multifarious when filed against the personal
representatives of two of the deceased partners of the two firms, and also
against the surviving partner of one of the firias. Ibid.

10. In a suit by the first indorser of promissory notes against a second indorser,
upon an alleged contract that the second indorser would bear half the loss
which might accrue from their non-payment by the drawer, it is not a suffi-
cient objection to the jurisdiction of the court, that the second indorsee and
defendant were citizens of the same State. Such an objection would be
well founded if the suit had been upon the notes. Phillips v. Preston, 278.
11. But not where the suit is brought upon a collateral contract. Ibid..
12. A contract between two indorsers, that they will divide the loss between them,
is a good contract, and founded on a sufficient consideration. Ibid.
13. Being a collateral contract, by parol, parol evidence can be given to prove it.
The payee is a competent witness, and so is the notary, bringing with him

the act of sale.

Ibid.

14. In the case of The United States v. The Rank of the United States (2 Howard,
711), the court is of opinion that the question on the structure of the bill is
an open question, and for the first time presented to this court for decision.
The United States v. The Bank of the United States, 382.

15. The statute of Maryland of 1785, in its terms, does not embrace a bill of
change drawn on a foreign government. Ibid.

COMMERCIAL LAW (Continued).

16. A bill of exchange in form, drawn by one government on another, as this was,
is not and cannot be governed by the law merchant, and therefore is not sub-
ject to protest and consequential damages. Ibid.

CONSTITUTIONAL LAW.

1. In the case of Groves v. Slaughter (15 Peters, 449), this court decided that the
constitution of Mississippi did not, of itself, and without any legislative en-
actment, prohibit the introduction of slaves as merchandise and for sale.
Rowan v. Runnels, 134. Truly v. Wanzer, 141.

2. This constitution went into operation on the 1st of May, 1833, and on the 13th
of May, 1837, a law was passed to provide for the case. Ibid.

3. This court adheres to the construction of the constitution which was given in
the case of Groves v. Slaughter, and enforces contracts made between the
two days above mentioned, although the courts of the State of Mississippi
have, since the decision in the case of Groves v. Slaughter, declared such
contracts to be void. Ibid.

4. Under the fourth section of the act of 12th February, 1793, respecting fugi-
tives from justice, and persons escaping from the service of their master, on a
charge for harbouring and concealing fugitives from labor, the notice need
not be in writing by the claimant or his agent, stating that such person is a
fugitive from labor under the third section of the above act, and served on
the person harbouring or concealing such fugitive, to make him liable to the
penalty of five hundred dollars under the act. Jones v. Van Zandt, 215.
5. Such notice, if not in writing and served as aforesaid, may be given verbally
by the claimant or his agent to the person who harbours or conceals the fu-
gitive; and, to charge him under the statute, a general notice to the public
in a newspaper is not necessary. Ibid.

6. Clear proof of the knowledge of the defendant, by his own confession or oth-
erwise, that he knew the colored person was a slave and fugitive from labor,
though he may have acquired such knowledge from the slave himself, or
otherwise, is sufficient to charge him with notice. Ibid.

7. Receiving the fugitive from labor at three o'clock in the morning, at a place
in the State of Ohio about twelve miles distant from the place in Kentucky
where the fugitive was held to labor, from a certain individual, and trans-
porting him in a closely covered wagon twelve or fourteen miles, so that the
boy thereby escaped pursuit, and his services were thereby lost to his mas-
ter, is a harbouring or concealing of the fugitive within the statute. Ibid.
8. A transportation under the above circumstances, though the boy should be re-
captured by his master, is a harbouring or concealing of him within the stat-
Ibid.

ute.

9. Such a transportation, in such a wagon, whereby the services of the boy were
entirely lost to his master, is a harbouring of him within the statute. Ibid.
10. A claim of the fugitive from the person harbouring or concealing him need not
precede or accompany the notice. Ibid.

11. Any overt act so marked in its character as to show an intention to elude the
vigilance of the master or his agent, and which is calculated to attain such
an object, is a harbouring of the fugitive within the statute.

Ibid.

12. In this particular case, the first and second counts contain the necessary aver-
ments, that Andrew, the colored man, escaped from the State of Kentucky
into the State of Ohio. Ibid.

13. They also contain the necessary averments of notice that said Andrew was a
fugitive from labor, within the description of the act of Congress. Ibid.
14. The averments in the said counts, that the defendant harboured said Andrew,
are sufficient. Ibid.

16. The act of Congress, approved February 12, 1793, is not repugnant to the con-
stitution of the United States. Ibid.

17. The said act is not repugnant to the ordinance of Congress, adopted July, 1787,
entitled, "An Ordinance for the Government of the Territory of the United
States northwest of the River Objo." Ibid.

18. A contract, made in New York, is not affected by a discharge of the debtor
under the insolvent laws of Maryland, where the debtor resided, although
the insolvent law was passed antecedently to the contract. Cook v. Moffat,
19. The prior decisions of this court upon this subject reviewed and examined.

295.

Ibid.

CONSTITUTIONAL LAW (Continued).

20. In the case of The United States v. The Bank of the United States (2 How-
ard, 711), the court is of opinion that the question on the structure of the bill
is an open question, and for the first time presented to this court for decision.
The United States v. The Bank of the United States, 382.

21. The statute of Maryland of 1785, in its terms, does not embrace a bill of ex-
change drawn on a foreign government. Ibid.

22. A bill of exchange in form, drawn by one government on another, as this was,
is not and cannot be governed by the law merchant, and therefore is not
subject to protest and consequential damages. Ibid.

23. The power conferred upon Congress by the fifth and sixth clauses of the eighth
section of the first article of the constitution of the United States, viz.:
"To coin money, regulate the value thereof and of foreign coin, and fix the
standard of weights and measures"; "To provide for the punishment of
counterfeiting the securities and current coin of the United States "; - does
not prevent a State from passing a law to punish the offence of circulating
counterfeit coin of the United States. Fox v. The State of Ohio, 410.
24. The two offences of counterfeiting the coin, and passing counterfeit money,
are essentially different in their characters. The former is an offence direct-
ly against the government, by which individuals may be affected; the latter
is a private wrong, by which the government may be remotely, if it will in
any degree, be reached. Ibid.

25. The prohibitions contained in the amendments to the constitution were intend-
ed to be resti ctions upon the federal government, and not upon the author-
ity of the States. Ibid.

26. The grant in the constitution, extending the judicial power "to all cases of
admiralty and maritime jurisdiction," is neither to be limited to, nor to be in-
terpreted by, what were cases of admiralty jurisdiction in England when the
constitution was adopted by the States of the Union. Waring v. Clarke, 441.
27. Admiralty jurisdiction in the courts of the United States is not taken away b
cause the courts of common law may have concurrent jurisdiction in a case
with the admiralty. Nor is a trial by jury any test of admiralty jurisdiction.
The subject-matter of a contract or service gives jurisdiction in admiralty.
Locality gives it in tort, or collision. Ibid.

28. In cases of tort, or collision, happening upon the high seas, or within the ebb
and flow of the tide, as far up a river as the tide ebbs and flows, though it
may be infra corpus comitatus, courts of admiralty of the United States have
jurisdiction. Ibid.

29. The meaning of the clause in the ninth section of the Judiciary Act of 1789,
saving to suitors, in all cases, a common law remedy when the common law
is competent to give it, is, that in cases of concurrent jurisdiction in ad-
miralty and at common law the jurisdiction in the latter is not taken away.
Ibid.

30. The act of 7th July, 1838 (5 Statutes at Large, 304), for the better security of
the lives of passengers on board of vessels propelled in whole or part by
steam, is obligatory in all its provisions, except as it has been altered by the
act of 1843 (5 Statutes at Large, 626), upon all owners and masters of steam-
ers navigating the waters of the United States, whether navigating on waters
within a Stae, or between States, or waters running from one State into an-
other State, or on the coast of the United States between the ports of the
same State or different States. Ibid.

31. By the law of 7th July, 1838, masters and owners neglecting to comply with
its conditions are liable to a penalty of two hundred dollars, to be recovered
by suit or indictment. And if neglect or disobedience of the law shall be
proved to exist when injury shall occur to persons or property, it throws upon
the master and owner of a steamer the burden of proof to show that the in-
jury done was not the consequence of it. Ibid.
32. Laws of Massachusetts, providing that no person shall presume to be a retail-
er or seller of wine, brandy, rum, or other spirituous liquors, in a less quan-
tity than twenty-eight gallons, and that delivered and carried away all at one
time, unless, he is first licensed as a retailer of wine and spirits, and that
nothing in the law should be so construed as to require the county commis-
sioners to grant any licenses, when in their opinion the public good does not
require them to be granted, License Cases, 504.
33. Of Rhode Island, forbidding the sale of rum, gin, brandy, &c., in a less quan-
tity than ten gallons, although in this case the brandy which was sold was

--