Drummond v. Prestman. 12 W.

every judgment is competent to prove between any parties, to wit, that such a judgment was obtained between certain parties in a certain cause of action. It was also evidence to prove that the cause of action was identically the same with the one on which this action was instituted; and that, in that suit, William Prestman solemnly acknowledges that the statement made by him in favor of Charles Drummond was of a debt really due on a joint trade between Charles and Richard Drummond. And why should not this be evidence against George, the guarantee, who had tendered himself as security to these individuals in these very transactions?

We are perfectly aware of the rule that he who cannot profit by a judgment between other parties should not be damnified by it. But here the application of the rule is in favor of the admission of this record. Suppose the suit against William Prestman had gone to a

jury, and a verdict obtained against this plaintiff, can there [* 520 ] be a doubt *that the record would have been admissible in evidence in favor of this defendant?

The material fact on this subject is, that the liability of the guarantee is dependent upon the liability of the principal; the case, therefore, is not widely different from that of accessory and principal, in which the record of the conviction of the principal is primâ facie evidence against the accessory.

Nor is it unlike the case of Green v. The New River Company, 4 Term Rep. 590, in which it was held that a judgment against a master for damage from the negligence of his servant, was good evidence against the servant, in an action against him by the master for the same negligence, the recovery in the one case being dependent upon that in the other. See, also, Stark Ev. 188, 189. There the case is presented of a master suing the servant for damage sustained by the negligence of the servant. The questions are, whether the master has been damnified by the negligence of the servant, and to what amount; and the record of a judgment against the master is admitted in evidence against the servant. The present case, however, is a much stronger one. It seems unique in its principle, since the object of introducing the record seems not so much to prove that a judgment was obtained, as that a judgment was confessed. Now, the proof of William Prestman's liability to Drummond was indispensable to Drummond's recovery against the guarantee. But this liability might have been proved by a confession in writing, or even by parol, after his death, if not before; then why not by the more solemn act of confessing it of record?

It is worthy of remark in this case, that the guaranty purports, by its terms, to be something more than a mere suretyship for a debt

Drummond v. Prestman. 12 W.

The words are, I guarantee to you "the conduct of my son." It partakes, therefore, of the nature of a bond given by a surety for the faithful discharge of a duty; and it cannot be doubted that, in proving the fact of a breach of the condition of such a bond, the confessions of the principal, after his death, would be evidence. It would be difficult to assign a reason why his confessions ⚫should lose that character by increasing in their sole:n- * 521 ] nity.

We are aware that there are cases which have been thought to maintain principles inconsistent with these doctrines. They are chiefly collected together in the 2d vol. of Mr. Metcalf's edition of Starkie's Treatise on Evidence, title Surety.

We have examined those cases, and find some of them of very little authority, others inapplicable to the circumstances of the present case, and, generally, in support of our opinion.

The case of Dawes et al. v. Shed et al. executors, 15 Mass. 6, has no application. It was a suit against the surety of an executor, by a creditor of the deceased, who had obtained judgment against the executor, and received payments of interest upon the debt. The question was, whether this precluded the surety from his plea of the act of limitations of that State, made in favor of executors. The court decided that it did not preclude him. In that case, the record was pleaded in bar, and the decision given that it was not conclusive.

In the case of Respublica v. Davis, 3 Yeates, 128, an attempt appears to have been made to introduce a record for the purpose of proving an admission of counsel in evidence; we cannot understand on what principle it was rejected; but the suit being on a recognizance that one Cobbett should keep the peace, and the breach proposed to be established being the publication of a libel, parol evidence of the confession of Cobbett was admitted to prove, against the surety, that he had published a libel. So that this authority would seem in favor of our doctrine.

So, in The Sheriffs of London v. Tindall, 1 Esp. Cases, 394, which was a suit against the surety of a bailiff, a receipt indorsed on a warrant, in the handwriting of the principal, was admitted in evidence, which amounted to nothing less than a confession that the bailiff had received a sum of money, and ordered the prisoner discharged. It was objected that the bailiff himself should be sworn, but the judge refused, and admitted the evidence, declaring that the bailiff * was, in fact, the defendant in the action. [* 522 ] This would go far to prove, that even in William Prestman's

life, the stated account would have been evidence against George;

Drummond v. Prestman. 12 W.

and the fact of a judgment being entered upon it by confession, could not have been immaterial to corroborate it.

The case of Evans et al. v. Beatie, executors, 5 Esp. Cas. 26, seems contra; for there, in a suit against the guarantee of one Copper, for

66

any woollens that should be furnished him by plaintiff,” evidence was offered to prove Copper's parol acknowledgment of certain goods delivered, but refused on the ground that he might be sworn, and it was not the best evidence the nature of the case would admit of.

Here, it will be observed that the principal was living; but we must not be thought to concur, without further consideration, in the doctrine that he could have been equally sworn for the one party, or compelled to give evidence for the other. With the surety he had a direct interest, and against the plaintiff it was equally direct. In the present case the principal was dead, This case is loosely reported, and attributes some observations to Lord Ellenborough which we doubt much the authenticity of.

In the case of Higham v. Ridgway, 10 East. 122, the doctrine on these subjects is laid down with so much good sense as to speak its own correctness. It is to this effect; that the principle to be drawn from all the cases is, that if a person have peculiar means of knowing a fact, and make a declaration of that fact which is against his interest, it is clearly evidence after his death, if he could have been examined to it in his lifetime. On this principle it is that entries in receivers' accounts are admitted; so, also, an acknowledgment by a witness of a debt to another, or of an acquittance of a debt to himself; because the individual who makes the acknowledgment has no interest of his own to subserve, but does it to his own prejudice. In all such cases, however, the evidence is received with due caution, and its weight must rest with the jury.

The most stubborn case on this subject that we have considered is that of Beall v. Beck, reported in 3 Harris & M'Henry, 242.

| * 523 ]

*This was debt upon a sheriff's bond, brought against a surety in Maryland. The same plaintiff had brought suit, and recovered judgment against the sheriff for the same cause of action, and the court refused to receive the record of that judgment in evidence as against the surety. In the inferior court it was rejected on a division of opinion, but in the court of the last resort, we are told, the judgment was affirmed.

On this decision we can only remark that the report of it is very brief and unsatisfactory; there is no argument of counsel, or other means of determining on what the decision turned. If the attempt was made to introduce the record as final and conclusive against the surety, it was properly rejected, and, in the absence of any thing to

Harcourt v. Gaillard. 12 W.

prove the contrary, we cannot but suspect that such was the true import of that decision. In any other view we should not feel satisfied to recognize its authority.

Judgment reversed, and a venire facias de novo awarded.

HARCOURT and others v. GAILLARD and others.

12 W. 523.

A grant made by the British governor of Florida, after the declaration of independence, within the territory lying between the Mississippi and the Chatahouchee Rivers, and hetween the 31st degree of north latitude, and a line drawn from the mouth of the Yazoo River due east to the Chatahouchee, is invalid as the foundation of title in the courts of the United States.

THIS cause was argued by White and Isaacks, for the plaintiffs, and by Coxe and Worthington, for the defendants.

JOHNSON, J., delivered the opinion of the court.

[* 524 ] The questions upon which this cause turns arose out of a British grant to the ancestor of the plaintiff, dated the 24th of January, 1777.

The land in controversy is situated in that tract of country which lies between the Mississippi and Chatahouchee Rivers, and between the 31st degree of north latitude to the south, and a line drawn from 'the mouth of the Yazoo River, due east to the Chatahouchee. From the earliest times of the settlement of North America, the region of territory in which that tract of country is described was the subject of wars and negotiations with France, Spain, and Great Britain, until 1763, when Great Britain became the undisputed proprietor of the whole, from the Lakes Maurepas to Ponchartrain, and the Gulfs of Mexico and Florida, by the Mississippi northwardly. Before that time her claim extended southwardly to the 29th degree of north latitude, as is evidenced by her charter to the lords proprietors of 1677; and from the same instrument it appears that she interfered with the province of Louisiana, by extending her southern line to the Pacific Ocean. The country of Florida, therefore, south of the 29th degree, was a conquest; that north of the 29th degree, and up the Mississippi, was held as a part of her own territory, concerning which her treaties with France and Spain only established a disputed boundary.

On the 7th of October, 1763, the king, exercising a right which was never questioned, over what were then called royal provinces, issued his proclamation, by which he established the northern boundary of the Floridas at the 31st degree of north latitude from the

Harcourt v. Gaillard. 12 W.

Mississippi to the Appalachicola, down that stream to its confluence with Flint River, and from that point by a line to the head of the St. Mary's, and by that river to the sea. And this was the line which, by treaty of peace, was established as the southern boundary of the United States. After the peace, the United States, Spain, South Carolina, and Georgia, succeeded to the disputes of Great Britain, France, and Spain, relative to the same tract of country.

[* 525 ]

* The original title of South Carolina, under the grant to the lords proprietors, was unquestionable; and she contended that she had never been legally devested of soil or sovereignty. Georgia founded her claim on the commissions her governor, Wright, which comprised within its jurisdiction the territory in question; and the United States claimed it as a conquest from the British province of West Florida; while Spain insisted that it was a part of Louisiana or Florida, and, as such, ceded to her by the treaty of 1783. Finally, South Carolina, by the treaty of Beaufort, relinquished her claim to Georgia, and the United States settled her claim by taking a cession from Georgia of the land in controversy; so that, at present, the claims of the United States, of the State of South Carolina, and of Georgia, have become united in the general government.

The grant to Harcourt, it will be perceived from its date, was subsequent to the declaration of independence, and within the acknowl-* edged limits of the United States; it therefore involves the question whether such a grant can be valid; a question which would have been involved in less difficulty, if the United States had never set up the claim of conquest. That ground would admit the original right of the governor of West Florida to grant, and if so, his right to grant might have continued in force until the treaty of peace; and the grant in that case to Harcourt might have had extended to it the benefit of those principles of public law which are applicable to territories acquired by conquest; whereas, the right set up by South Carolina and Georgia deny all power in the grantor over the soil; the question which they present is one of disputed boundaries, within which, the power that succeeds in war is not obliged to recognize as valid any acts of ownership exercised by his adversary.

There are several reasons for putting the claim of the United States out of the question. She has abandoned it, and it is very clear, could never have sustained it. The very ground on which she denied the capacity of Spain to conquer, or take by cession, the territory on the Mississippi, was fatal to the pretensions set [526] up by her against Georgia and South Carolina, to wit.