treaty or act relied on, and that the court below decided against its validity. Hickie
v. Starke, 476.
3. Under the 25th section of the Judiciary Act, (1 Stats. at Large, 85,) it is not every
misconstruction of an act of congress which can be reëxamined; the decision must
have been against some right, &c., so claimed under such an act. Montgomery v.
Hernandez, 81.
4. This court cannot reëxamine the decision of a state court allowing an action on a
marshal's bond in the name of the person injured. Ib.
5. It must appear by the record that one of the specific questions described in the 25th
section of the Judiciary Act necessarily arose, and was determined adversely to the
right, &c., claimed under the constitution, or some law or treaty of the United
States; otherwise, this court has not jurisdiction. Williams v. Norris, 72.
6. The written opinion of a state court, filed among the papers, is not a part of the
record, and cannot be examined under the 25th section of the Judiciary Act, (1
Stats. at Large, 85,) to ascertain the questions decided. Ib.
7. An order made by a court of a State, after the removal of the record by a writ of
error, not by way of amendment, but introducing new matter, cannot be deemed a
part of the record. Ib.
8. This court cannot take jurisdiction upon a certificate of a question on which the
opinions of the judges of the circuit court are opposed, upon some proceeding subse-
quent to the decision of the cause in that court. Devereaux v. Mar, 131.
9. Under the act of March 3, 1815, (3 Stats. at Large, 245, sec. 4,) the circuit courts
of the United States have jurisdiction of suits by the postmaster-general, upon official
bonds of postmasters. The Postmaster-General of the United States v. Early, 86.
10. If it be the established practice of the courts of a State, in an action of ejectment,
to look behind the patent and examine into the validity of the progressive stages of
the title, this court, on a writ of error under the 25th section of the Judiciary Act,
cannot examine the correctness of that practice. Ross v. Barland, 752.
11. The circuit court has not jurisdiction of a case in which a corporation is defendant,
if the record contains no averment concerning the citizenship of the corporators.
Breithaupt v. The Bank of the State of Georgia, 551.
ABATEMENT, 3; AMENDMENT; BILLS OF EXCHANGE, &c. 13; CONSTITUTIONAL
LAW, 5-8; DEPOSITION; DEVISE, &c. 1; EQUITY, 4.5; INJUNCTION, 1. 2; MAN-
DAMUS; NONSUIT; PRACTICE; WRIT OF Error.
In Kentucky, seisin in deed is not essential to a tenancy by the curtesy, if the lands
were vacant-seisin in law is sufficient. Davis v. Mason, 679.
BILLS OF EXCHANGE, &c. 10; BOND, 1. 3; PRACTICE, 4; PUBLIC LANDS, 12.
1. By the statutes of Ohio, an unrecorded deed is void as against one to whom the
grantor was decreed by a court of chancery to make a title, such decree operating
as a conveyance. Steele's Lessee v. Spencer, 694.
2. The question whether an alteration was made in a deed is for a jury; whether an
alteration, if made, was material, is for the court. Ib.
3. The privy examination and acknowledgment of the deed of a feme covert cannot be
proved by parol. Elliott v. Piersol's Lessee, 601.
4. When the clerk has made a record of his certificate of such examination and ac-
knowledgment, he is functus officio, and cannot afterwards amend the certificate. Ib.
5. If a real conveyance of land has been made to a citizen of another State, who
brings his action therefor, it is of no importance that the grantor was induced to
convey because he thought his title would be held good in a court of the United
States, and bad in a court of the State, nor that the conveyance, though in form ab-
solute, was really but a mortgage. M'Donald v. Smalley, 732.
EQUITY, 3; HUSBAND AND WIFE.
1. Under the 30th section of the Judiciary Act, a deposition is not admissible if the
certificate does not clearly show the deposition was reduced to writing in the pres-
ence of the magistrate. Bell v. Morrison, 612.
2. Cross-examining a witness is a waiver of irregularity in the time of taking the dep-
osition. The Mechanics' Bank of Alexandria v. Seton, 585.
1. This court adopts the decisions of the highest court of a State settling a rule of con-
struction of devises of lands. Jackson v. Chew, 94.
2. 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,
Waring v. Jackson, 702.
8 A testator having empowered his executors, his wife to have a voice as executrix,
to decide finally what was his intention, in case of dispute — held, that if this power
was valid, it did not enable the executors to decide contrary to the plain intent of
the testator, to be judged of by a court of justice, nor to decide a question in which
they or either of them was interested. Pray v. Belt, 760.
1. Construction of a will; legacy vested and payable from a specific fund. 1b.
5. 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.
under the law of New York, nothing passed by this last limitation over.
Jackson, 702.
6. In New York, a devise over to a survivor on failure of issue is deemed to be on a
definite and not an indefinite failure of issue, and so is good by way of executory
devise, and does not create an estate tail by implication, but a fee-simple, defeasible
by death without issue in the lifetime of the survivor. Jackson v. Chew, 94.
7. An absolute bequest of certain slaves to P. H. is qualified by a subsequent limitation
over, that if either of the testator's grandchildren, P. H. or J. D. A., should die
without a lawful heir of their bodies, that the other should heir its estate, which con-
verted the previous estate into an estate tail; and there being no words in the will
which restrained the dying without issue to the time of the death of the legatee, the
limitation over was held to be on a contingency too remote. Williamson v. Daniel,
8. The rule of partus sequitur ventrem is universally followed, unless there be something
in the terms of the instrument which disposes of the mother, separating the issue
from her. Ib.
* 9. A devise of a tract of land to A., "he paying all my debts," charges the debts on
the land, and gives the other devisees and legatees a right to maintain a bill to have
the debts paid thereout. The creditors need not be made parties. Potter v. Gardner,
10. A purchaser from the devisee may be charged for the purchase-money remaining
in his hands, and for what he has aided the devisee in misapplying. Ib.
11. Though a will charging debts on the testator's "estate" may subject his lands to
their payment, yet, if the context shows the testator referred only to his personalty
by the word estate, the lands are not charged. Archer v. Deneale, 711.
1. A bill in equity for discovery and to charge the defendants with the payment of cer-
tain bills issued by a voluntary banking association of which they were members,
such associations being prohibited under penalties by the law of the State where the
business was carried on, cannot be maintained. The United States v. The Saline
Bank of Virginia, 477.
2. After discovery had, a suit for discovery merely cannot be revived. Horsburg v.
Baker, 546.
ADMIRALTY, 1; REVENUE LAWS.
AMENDMENT; COURTS OF THE UNITED STATES, 10; PLEADING, 3; WRIT OF
1. A court of equity has jurisdiction to compel a bank to open its transfer books and
permit a transfer of its stock. The Mechanics' Bank of Alexandria v. Seton, 585.
2. Where a female slave was conveyed for the life of the grantee, reserving to the
grantor the reversion and right to her increase, with a clause of forfeiture upon any
sale by the grantee, though the reversioner cannot have the aid of a court of equity
to enforce the forfeiture, he may, to obtain discovery and an injunction to restrain
alienation until the title can be tried at law. Horsburg v. Baker, 546.
3. Where the equity of a bill rests upon the loss of a deed, an affidavit of its loss should
be annexed to the bill; but the want of it is only cause of demurrer, and is waived
by answering. Findlay v. Hinde, 552.
4. The practice of the circuit courts in equity has been prescribed by this court, and
should be followed to the exclusion of the practice of the state courts. M'Donald
v. Smalley, 732.
5. If the circuit court has dismissed the bill for want of jurisdiction, and the decree is
reversed, this court will not hear the merits, but remand the cause. Ib.
ANSWER; BOND, 13. 14; DISCOVERY; Mistake of LAW; MORTGAGE; Parties,
1-5: PUBLIC LANDS, 11; SPECIFIC PERFORMANCE.
1. Declarations of a master concerning the voyage, made while endeavoring to hire a
mate, and as inducements to him to engage, are evidence against his employer. The
United States v. Gooding, 281.
2. A general agent of a manufacturing establishment gave a certificate that a certain
amount was due on settlement, from the firm whose agent he was; held to be admis-
sible evidence against his principals, when connected with circumstances which
tended to prove that the debt was contracted for materials used by him in the man-
ufacture. Barry v. Foyles, 592.
3. A judgment recovered on an account against the principal, is evidence of the
amount due from him, in an action against a guarantor of the account. Drummond
v. Prestman, 323.
4. If the execution of an original paper be admitted, and it is in the defendant's pos-
session, a copy, in the defendant's handwriting, may be used in evidence without
notice to produce the original. Carroll v. Peake, 428.
5. The affidavit of a party is competent evidence of the loss of a paper; it is not con-
clusive, but it is to be weighed by the court in connection with the circumstances.
Tayloe v. Riggs, 713.
6. When the contents of a written contract are to be proved by parol, vague, or uncer-
tain recollections are not sufficient; the substance of the agreement must be satis-
factorily proved. Ib.
7. Parol evidence is admissible to prove that all the parties to a negotiable note agreed
that payment should be demanded of the maker at a particular bank, the note being
silent as to the place of payment or demand. Pearson v. The Bank of the Metrop-
olis, 472.
8. Though declarations of aged and deceased members of a family, concerning its
pedigree, are not admissible if made post litem motam, yet this rule applies only
when the lis mota concerns the pedigree, not some other question involved in the
title. Elliott v. Piersol's Lessee, 601.
9. A letter having been written to the defendant by a third person, requesting the
defendant to ship sugars to the plaintiff, and the defendant having added to the
letter the word "agreed," and signed his name-held, that parol evidence was ad-
missible to prove that the plaintiff agreed to advance moneys to the third person on
the faith of the shipment; that this agreement and the letter and the assent of the
defendant were parts of one transaction; and the written paper was made for the
purpose of being delivered to the plaintiff, and was so delivered; and this being
proved, it was further held that the contract of the defendant was not within the
statute of frauds of New York. D'Wolf v. Rabaud, 672.
10. A witness may be asked whether he was agent for the plaintiff before any evidence
of the manner of creating his agency. Conard v. The Atlantic Insurance Co. of
New York, 637.
11. Proof of the signature of one of the parties, to a joint and several bond, is sufficient
to make title as against him. Ib.
BILLS OF EXCHANGE, &c. 11; BOND, 9; CORPORATION, 1; Deed, 3; EXCEPTIONS,
2; FRAUDS, STATUTE OF, 1; Slaves, &c. 1; WILL, 2.
1. The court is not bound to modify the instructions prayed for by counsel; if not
correct in point of law as prayed, they may rightfully be rejected. Buck v. The
Chesapeake Insurance Company, 508.
2. A court is not bound to do more than to respond to a motion to reject evidence in
the terms in which it is made. If the motion be to reject all, and some is competent.
it is not error to deny the motion. Elliott v. Peirsol's Lessee, 601.
3. If a bill of exceptions does not contain some paper offered in evidence and certified
by the clerk below to have been accidentally lost, such lost paper will be presumed
to contain what was necessary to support the judgment, if such a presumption is
possible. Carroll v. Peake, 428.
EXECUTION.
BOND, 15; JUDGMENT, &c. 3.
EXECUTORS AND ADMINISTRATORS.
1. To an action of debt on a judgment recovered by the plaintiff as administrator, ne
unques administrator, or any thing equivalent to it, is not a good plea in bar. Biddle
v. Wilkins, 770.
2. In such an action, the plaintiff may declare personally and not in his representative
character, and is not bound to make profert of his letters of administration. Ib.
APPEAL, LIMITATIONS, &c. 2.
CONSTITUTIONAL Law, 5–8; Public Lands, 1.
1. A claim having been admitted, the prosecutor must file an exceptive allegation, if the
proceeding be in the admiralty, or a plea in abatement, if it be by an information at
law, in order to put in issue the claimants' right to appear. The United States v.
422 Casks of Wine, 691.
2. The court may, in its discretion, refuse to restore property to a claimant, if the
evidence at the hearing shows he ought not to receive it, though no forfeiture be
decreed. Ib.
EQUITY, 2; Information; Practice, 2; Revenue Laws.
FORTHCOMING BOND.
BOND, 15.
1. An item inserted in an account stated and settled, in the handwriting of the vendor,
and signed by the vendee, in the words and figures following: "By my purchase of
your half E. B. wharf and premises, this day agreed on between us, $7,578.63," is
a sufficient memorandum within the statute of frauds, and parol evidence is admis-
sible to fill up the initials. Barry v. Coombe, 743.
2. If the vendee under such a contract, gives notice he will not be bound by it, if the
vendor does not pay the balance due on the account, and the vendor does not adopt
the alternative tendered to him, the contract is not at an end. 1b.
Though a feme covert, abandoned by her husband, may contract debts as a feme sole,
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