Bank of Columbia v. Sweeny. 1 P. expenses. On this testimony the claim rests. The evidence is too defective to require comment. It is the opinion of this court that it is too loose and indeterminate to sanction the claim, and it cannot be allowed. The decree of the circuit court, affirming the decree of the orphans' court as to this is reversed, in all other respects it is affirmed. 8 H. 402. THE BANK OF COLUMBIA V. GEORGE SWEENY. 1 P. 567. This court will not grant a mandamus to revise the proceedings of a circuit court as to the pleadings. This can only be done by a writ of error after a final judgment. MESSRS. Jones and Key moved the court for a mandamus. * Jones and Key, for the plaintiffs. Swann and the Attorney-General, for the defendant. [* 569 ] MARSHALL, C. J., delivered the opinion of the court. This case arose under the provision of the act of the legislature of Maryland, incorporating the Bank of Columbia, which authorizes summary process for the collection of debts due to the bank. That act allows an execution against the person of the debtor to issue, in the first instance, upon the application of the president of the bank; but it also authorizes the court, if upon the return of the execution the defendant "dispute the debt," to order an issue to be made &c., to try the action. up, In the present case, the circuit court did not refuse to direct such an issue to be made up; which, had they refused to do, a mandamus would have been the proper process to compel that to be done which the act requires. But the circuit court did direct an issue, and allow a plea of the statute of limitations. The application now is that the circuit court be ordered to withdraw that issue, and to direct a different issue to be made up according to what the counsel for the bank supposes to be the proper construction of the act. We think this is not a proper case for a mandamus. It does not differ in principle from any other case in which the party should plead a defective plea, and the plaintiff should demur to it; in which case there is no doubt that the revising power of this court could be exercised only by a writ of error. If this motion could now prevail, it would be a plain evasion of Waring v. Jackson. 1 P. the provision of the act of congress,1 that final judgments only should be brought before this court for reëxamination. This case might still be brought before this court by a writ of error, notwithstanding any. opinion expressed upon the mandamus, and the same question again be discussed upon the final judgment. The effect, therefore, of this mode of interposition would be to retard decisions upon questions which were not final in the court below, so that the same cause might come before this court many times before there would be a final judgment. The court is therefore of opinion that this is not a case for a mandamus, and the motion is denied. STEPHEN WARING, Plaintiff in Error, v. JAMES JACKSON, Ex-devise of MEDCEF EDEN and another, Defendants in Error. THE SAME V. THE SAME. 1 P. 570. Under a devise to two sons in fee, with a clause that if either die without issue, the survivor should take his part, and if both die without issue, then over. Held, that, under the law. of New York, nothing passed by this last limitation over. A possession of land taken and held under an execution, not against the lawful owner, does not prevent him from devising the land under the law of New York. THOMPSON, J., delivered the opinion of the court. These cases come up from the circuit court of the United States for the southern district of New York, upon writs of error. The question in the court below turned upon the construction of the will of Medcef Eden, the elder, bearing date the 29th August, 1798, by which the testator devised to his son, Joseph, certain portions of his estate, among which were the premises in question in this cause. "To him, his heirs, executors, and administrators forever." In like manner, he devised to his son, Medcef, his heirs and assigns, certain other portions of his property, and adds the following clause: "Item. It is my will, and I do order and appoint that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths without lawful issue, then I give all the property aforesaid to my brother, John Eden, of Lofters, in Cleveland, in Yorkshire, and my sister, Hannah Johnson, of Whitby, in Yorkshire, and their heirs." [*571] *The case of Jackson v. Chew, 12 W. 153, decided at the last term, brought under the consideration of this court the construction of this same clause in the will, and the records in the present cases have been submitted to the court, without argument, to 11 Stats. at Large, 85. Waring v. Jackson. 1 P. see whether the decision in that case will govern the cases now be fore us. The facts disclosed in the case of Jackson v. Chew, did not require of the court to decide any other question than whether Joseph Eden took under the will an estate tail, which, by operation of the statute of New York, abolishing entails, would be converted into a fee-simple absolute. The court decided that he did not take an estate tail, but an estate in fee, defeasible in the event of his dying without issue in the lifetime of his brother, (which event happened,) and thereupon his interest in the land became extinct, and the limitation over to his brother, Medcef, was good as an executory devise. In the cases now before the court, it appears that Medcef Eden has died without issue, having by his last will and testament devised his estate to his widow, and certain other devisees therein named, which has given rise to two other questions, namely, whether John Eden and the heirs of Hannah Johnson (she being dead) took any estate in the premises, under this clause in the will, on the death of Medcef Eden, without issue? And whether the possession taken and held under the sheriff's sale, by virtue of the judgments and executions against Joseph Eden was such an adverse holding as to prevent the operation of the will of Medcef Eden, the younger. In deciding the case of Jackson v. Chew, we did not enter into an examination of the construction of this clause in the will, considered as an open question; but adopted the construction, which appears to be well settled in the two highest courts of law in the State of New York, not only upon this very clause, but in numerous other analogous cases; and has thereby become a fixed rule of landed property in that State. And this was in conformity with what has been the uniform course of this court with respect to the titles to real property to apply the same rule that we find applied by the state tribunals in like cases. The additional questions presented in the cases now before us, have likewise undergone a very full examination in that State, and been decided both by the supreme court and the court for the correction of errors. In the case of Wilkes v. Lion, 2 Cowen, 333, the decision turned upon these very points, and the court of errors affirming the decision of the supreme court, held with only one dissenting voice, that nothing passed under the ulterior devise over to John Eden and Hannah Johnson, but that Medcef Eden had become seised of an estate in fee-simple absolute. [* 572] No opinion appears to have been directly expressed by the court with respect to the effects of the adverse possession upon the operation of the devise in the will of Medcef Eden, the younger. United States v. Stansbury. 1 P. But this was a question necessarily involved in the result. And the decisions of the courts in that State are very satisfactory to show that such an adverse possession will not there prevent the operation of a devise. The doctrine in the case of Doe v. Thompson, 5 Cowen, 374, warrants this conclusion. And it is understood that this precise question, arising on the construction of the statute of the wills in that State, has recently been decided in the supreme court in a case, the report of which is not to be found here. We are accordingly of opinion that the judgments of the circuit court in these cases must be affirmed. 3 P. 99. THE UNITED STATES, Plaintiffs in Error, v. NICHOLAS STANSBURY AND EDWARD MORGAN. 1 P. 573. A discharge, by the secretary of the treasury, of the principal debtor taken on a ca. sa. pursuant to the act of June 6, 1798, (1 Stats. at Large, 561,) does not release his sureties from the judgment, nor operate as a satisfaction thereof. ERROR to the circuit court of the United States for the district of Maryland. The case is stated in the opinion of the court. Wirt, (attorney-general,) for the United States. No counsel contrà. [ * 574 ] MARSHALL, C. J., delivered the opinion of the court. This was an action of debt on a judgment which had been rendered in favor of the United States, against Thomas Sheppard, and the two defendants in error. The marshal returned, as to Sheppard, non est inventus. The other two defendants pleaded that they were sureties to Sheppard, in the bond on which the [575] former judgment was rendered; that the United States took out a ca. sa. on that judgment against Sheppard, by virtue of which he was imprisoned; whereupon William H. Crawford, the secretary of the treasury of the United States, released the said Sheppard from execution on his paying costs, and conveying all his property, real, personal, and mixed, to the United States, with which condition, it is admitted, Sheppard complied. The United States demurred, and the circuit court gave judgment on the demurrer, pro forma, for the defendants, which judgment is now before this court on a writ of error. It is not denied that, at common law, the release of a debtor whose person is in execution, is a release of the judgment itself. Yet the body is not satisfaction in reality, but is held as the surest United States v. Stansbury. 1 P. means of coercing satisfaction. The law will not permit a man to proceed at the same time against the person and estate of his debtor; and when the creditor has elected to take the person, it presumes satisfaction if the person be voluntarily released. The release of the judgment is, therefore, the legal consequence of the voluntary discharge of the person by the creditor. This being the positive operation of the common law, it may unquestionably be changed by statute. The United States contend that it is changed, by the act providing for the relief of persons imprisoned for debts due to the United States. That act authorizes the secretary of the treasury, on receiving a conveyance of the estate of a debtor confined in jail at the suit of the United States, or any collateral security to the use of the United States, to discharge such debtor from his imprisonment under such execution; and he shall not be again imprisoned for the said debt; "but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then or at any time afterwards belong to the debtor. The sole duty of the court is to construe this statute according to its words, and the intent of the legislature. Did congress design to discharge the sureties or to release the judgment? The act is "for the relief of persons imprisoned for debts due to the United States," not for the relief of their sureties; and does not contain a single expression conducing to the opinion that the mind of the legislature was directed towards the sureties or contemplated their discharge. The only motive for the act being to relieve debtors, who surrender all their property, from the then useless punishment of imprisonment, there can be no motive for converting this act of mere humanity into the discharge of other debtors, whose condition it does not in any manner deteriorate. If the act produces this effect, it is an effect contrary to its intention, [* 576 ] occasioned by a technical rule originating in remote ages, which has never been applied to a statutory discharge of the person. But the language of the statute has guarded against this result. It has expressly declared that the judgment shall remain good and sufficient in law. How can this court say that it is not good, and is not sufficient? If it be good and sufficient, for what purpose is it so? Certainly, for the purposes for which it was rendered; to enable the United States to proceed regularly upon it, as upon other judgments, with the single exception made by the act itself. The voluntary discharge of a debtor by his creditor is a release of the judgment, because such is the law. But in this case the legislature has altered the law. It has declared that the discharge of a debtor |