Brush v. Ware. 15 P. whom a patent had issued, reciting that the title was derived under the will of Henry Willis. This will did not authorize the sale of the premises, and the court held that this was notice to the defendant. So in the case of Jackson ex dem. Livingston v. Neely, 10 Johns. 374, it was held that, where a deed recited a letter of attorney by virtue of which the conveyance was made, which was duly deposited with the clerk of Albany, according to the act of the 8th January, 1794, it was held to be sufficient notice of the power by means of the recital, to a subsequent purchaser, who was equally affected by it as if the power itself had been deposited. An agent receiving notes from an executor, payable to him as executor, as security for advances by the principal to the executor on his private account, and not as executor, affects [* 114] his principal with notice that it is a dealing with an execu tor with the assets for a purpose foreign to the trusts he was to dis charge. 2 Ball & Beat. 491. When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact Mertins v. Jolliffe, Amb. 311. A made a conveyance to B, with a power of revocation by will, and limited other uses. If A dispose to a purchaser by will, a subsequent purchaser is intended to have notice of the will as well as of the power to revoke; and this is a notice in law. And so in all cases where a purchaser cannot make out a title but by deed which leads to another fact, notice of which a purchaser shall be presumed cognizant; for it is crassa negligentia that he sought not after it. Moore v. Bennet, 2 Ch. Ca. 246. Notice of letters-patent, in which there was a trust for creditors, is sufficient notice of the trust. Dunch v. Kent, 1 Vern. 319. That which shall be sufficient to put the party upon inquiry is notice. 13 Ves. 120. On a full consideration of this part of the case, we think that the defendant must be held to be a purchaser with notice. The circuit court considered the defendant as vested with a right to such part of the land as is usually given to a locator, and directed one fourth of the two tracts to be laid off to him so as to include his improvements; and they also decreed to the defendant three fourths of the taxes paid by him, with interest. This part of the decree is equitable; and, as we coincide with the views of the circuit court on all the points of the case, the decree is affirmed. 7 H. 283; 9 H. 421. Gorman v. Lenox's Executors. 15 P. JOHN B. GORMAN and others, Plaintiffs in Error, v. PETER LENOX'S EXECUTORS, Defendants in Error. 15 P. 115. In a declaration on a bond conditioned to prosecute with effect an action of replevin, it is a sufficient assignment of a breach, that "the suit was not prosecuted with effect." A variance can only be taken advantage of at the trial. THE case is stated in the opinion of the court. Hoban and Coxe, for the plaintiffs. Brent, contrà. [ *115 ] * M'LEAN, J., delivered the opinion of the court. of the District of Columbia, on a writ of error. An action was brought in the circuit court, by the executors of Lenox against the plaintiffs in error, on a bond given by them in the penalty of $3,400, with the condition "that the said John B. Gorman should well and truly prosecute a certain writ of replevin with effect;" and also, "should return the goods and chattels replevied, if the same be adjudged, and in all things stand to and abide by, perform, and fulfil, the judgment of the court in the premises." [*116] To the declaration, the defendants filed a plea of performance, to which the plaintiffs demurred. The defendants also put in a plea of set-off, that the testator was indebted unto the said Gorman, in the sum of $1,238.96, for so much money, &c., and for a like sum for goods, wares, and merchandise. To this plea, the plaintiff replied the general issue of nonassumpsit. The statute of limitations was also replied to this plea of set-off, on which issue was joined. The cause on these issues was submitted to a jury, who returned a verdict for the plaintiffs for the sum of $1,088.25, as the amount of damages on the bond. After the verdict, the demurrer filed to the plea of performance was argued and sustained; and thereupon a judgment was entered for the penalty in the bond, to be released on the payment of the sum found by the jury. On the trial, the plaintiffs, by their counsel, offered in evidence to the jury, the record and minutes of proceeding in the case of Gorman v. Lenox's executors, and claimed the verdict of the jury for the amount of the rent in arrear found by the jury in that case. And the defendants then "offered to prove the set-off filed in this cause, for the purpose of showing that no rent in arrear was actually due; Gorman v. Lenox's Executors. 15 P. as found by said verdict, from Mrs. Arguelis, as charged in the said avowry; and that, therefore, the plaintiffs were not damaged to that amount. But the court were of opinion that such evidence, so offered by the defendants, was inadmissible, to which decision defendants excepted." And the defendants further prayed the court to instruct the jury that the plaintiffs were not entitled to recover for the rent in arrear as aforesaid found by the jury, in the record aforesaid, above given in evidence, which the court refused to give. This record is most loosely and informally made up. But little attention seems to have been paid to the issues made, or to the order in which they were tried. To the plea of set-off, the plaintiffs below replied the general issue of non-assumpsit, and also the statute of limitations, when the more regular mode of testing the validity of the plea would have been by demurrer. Indeed, it is a matter of surprise that [117] so obvious a course was not taken. But this irregularity seems not to be important, as on the trial of these issues the defendants offered evidence under the plea of set-off, which was overruled by the court. This, in effect, determined the matter of the plea. The demurrer to the plea of general performance, seems not to have been decided until after the verdict was rendered. As this plea was clearly bad, the demurrer was very properly sustained by the court. A demurrer being filed, the rule is, that the party who has committed the first fault shall have judgment against him. And on this demurrer a question is raised as to the sufficiency of the declaration. The breach assigned in the declaration is, that the said Gorman did not prosecute the writ of replevin with effect, nor return the goods and chattels replevied, nor pay to the plaintiffs the damages and costs recovered. The breaches are not assigned with care, and the judgment recovered in the replevin suit is inartificially stated in the declaration. But it seems where the declaration is on a bond, given to prosecute with effect a writ of replevin, a breach assigned as in this declaration, "that the suit was not prosecuted with effect," is sufficient; 11 Serg. & Lowber, 236; 6 Har. & Johns. 139; 2 Gill & Johns. 441– 443. The record of the judgment in the replevin suit, as certified in obedience to the writ of certiorari, substantially differs from the judgment described in the declaration; but the record of this judgment was only used as evidence in the circuit court, and no objection. was made to it. The variance, not having been excepted to in that Ex parte Crenshaw. 15 P. court, it cannot now be noticed. The objection, as stated in the second bill of exceptions was, that the amount of the rent in arrear found by the jury could not be received in evidence in this suit. The action being brought on a penal bond, under the Maryland practice, it was the province of the jury to assess the damages which the plaintiffs had a right to recover, and the judgment in the replevin suit was given in evidence, to show the amount of damages which the plaintiffs had sustained. This was undoubtedly correct, and it is equally clear that the defendants had no right to go into any inquiry as to the evidence on which the verdict was rendered. [* 118 ] The jury found in the replevin suit, the amount of rent in arrear, on which the distress was made, and this was the proper criterion of damages in that case. There was no error in the circuit court, therefore, in overruling this objection. It is equally clear that the court properly rejected all evidence under the plea of set-off. This was, substantially, an attempt to prove that there was no ground for the verdict and judgment for damages in the replevin suit. The offer was not to show that such judgment had been satisfied, but that it ought never to have been given. This evidence of set-off was also inadmissible, on the ground that it relates to different parties from those in the present suit. Upon the whole, the judgment of the circuit court is affirmed, with costs. Ex Parte ANDERSON CRENSHAW. 15 P. 119. A cause having been argued at the last term, a decree made, and a mandate sent, the appellee not having appeared at the present term, it appearing that the appellee was not cited as required by the act of congress, the decree was declared void and the mandate revoked. THE case is stated in the opinion of the court. Sergeant, for the motion. Key, contrà. *123] *TANEY, C. J., delivered the opinion of the court. This case was brought here by an appeal from the decree of the circuit court for the southern district of Alabama. It was argued at the last term, on the part of the appellants, and the decree Smith v. Clapp. 15 P. of the circuit court reversed. The argument and decision are reported in 14 Pet. 166. Anderson Crenshaw, against whom the judgment of this court was given, never appeared to the appeal; but the argument was heard in behalf of the appellants, and the decree of the circuit court reversed, under the belief that a citation had been regularly issued, and served upon him. It now appears that an accidental circumstance led the court into error in this respect, and that Crenshaw was not cited to appear in the manner required by the act of congress. A motion has been made, at the present term, on behalf of Crenshaw, to set aside and annul the judgment and decree of this court, and also to dismiss the appeal. As there is no case now pending here, between these parties, there is nothing upon which an order to dismiss would operate. But upon the facts above stated, it is very clear that the case was not legally before us at the last term; and the decree then pronounced *must, therefore, be declared null and void, and the mandate [*124 ] directed to the circuit court must be revoked. An order will accordingly be issued from this court. On consideration of the motion made by Mr. Sergeant, on a prior day of the present term of this court, to wit: on Monday, the 11th ultimo, and of the arguments of counsel thereupon had, as well against as in support of said motion: It is now here ordered, adjudged, and decreed, that the judgment and decree of this court, rendered in the above entitled cause, on Wednesday, the 26th day of February, a. D. 1840, be and the same is hereby declared utterly null and void; and that the mandate of this court directed to the judges' of the said circuit court, in this cause be and the same is hereby revoked. And it is also now here further ordered that the clerk of this court do forthwith send to the judges of the circuit court of the United States for the southern district of Alabama, a copy of this order of the court, under the seal of this court, together with a copy of the opinion of this court, pronounced this day. 5 H. 233; 6 H. 31. ARCHIBALD K. SMITH, Plaintiff in Error, v. ALFRED CLAPP, Defendant in Error. 15 P. 125. In Alabama, if an action be brought on a joint promissory note against two makers, and one is not found, the plaintiff may discontinue against the latter and proceed against the one served; if he does so, an averment in the writ only, of the citizenship of the one not proceeded against, is sufficient. |