United States vs. Wardwell et al. Court decided both points against the defendant; and overruled the contrary decision of the Circuit Court. The case of the United States vs. Nicoll, (12 Wheaton, 505,) in which the United bond, and that he might make himself easy; but refused to give up the bond, because he thought such bonds ought to remain as vouchers in his office." The record then proceeds :-"This being the whole of the testimony delivered on both sides, the attorney for the United States moved the Court to instruct the jury, that the election and promise of the supervisor to James Hughes, stated in his deposition, unless the said promise was fulfilled by some act of appropriation of the payments, by the supervisor, was not of itself an appropriation of the payments. But the Court overruled the motion of the attorney, and, on motion of the defendants, instructed the jury, that if they believed that the supervisor had made the election and promise, as stated in the deposition of James Hughes, that it was a declaration of his election, how the payments made by Arthur should be applied; and that whether a formal entry in the books, of their appropriation, corresponding with that election, were made or not, was immaterial, and that the jury ought to consider the appropriation as made.” To which opinion an exception was taken. Such is the record; and upon this posture of the case several observations arise to explain the opinion of the Court, 1. The cause was submitted without argument; and therefore no points could arise before the Court, except such as were apparent on the record. 2. Now upon the record the only points were, (1.) the admissibility of Hughes's deposition; and (2.) the instruction of the Court with reference to that deposition. 3. No point was made as to the effect of payments and credits made on general account in an account current between the parties. But the whole cause seems to have proceeded upon the assumption, that but for the special election and promise of the supervisor, the payments made and credited upon general account would not have extinguished the antecedent items of debt, so as to have discharged the first bond on which January was surety. The point not having been made, could not intentionally have been decided by the Supreme Court. 4. There was no evidence, that in the slightest degree tended to United States vs. Wardwell et al. States vs. January & Patterson is recognized, turned upon entirely distinct considerations. There the United States were supposed to have a right, like any other creditor, to apply pay show, that Arthur, at or before the time when the payments or credits were made by the supervisor in his books, directed any special appropriation of them; or that he did not intend that they should be placed to general account. On the contrary, Morrison expressly swore, that no such directions had ever been given until long afterwards, and after the suit was brought on the first bond. And Hughes's testimony, which applies to a period long after all the payments were made, and passed in the account current on general account, only goes to show, that the supervisor at that time elected and promised, that the payments and credits should be applied to the discharge of the antecedent debt; not that he had already so applied them. But the point did arise, whether, when no special appropriation had been made by either party at the time of the payments, but they had been passed to general account, without objection, on the account current, a public officer could, by his subsequent election or promise, change or alter the appropriation from the general account already made, to a special account. Some of the objections taken to the admissibility of Hughes's deposition relate to this point. If the opinion of the Court is examined with reference to the facts above stated, and the points made on the record, it will at once be seen, that there was no decision made on the point often supposed to have been ruled in this case, viz. that payments made on general account do not, (as in common cases,) go to extinguish antecedent items of debt according to the order of time, when the account is with a public officer of the United States. The judge, who delivered the opinion of the Court, after referring to the rule of law, that the debtor may, if he pleases, at the time direct the application of payments, and if he does not, the creditor may direct it; and if neither does, the law will make the application, proceeded to state, that the majority of the Court were of opinion, "that the rule adopted in ordinary cases is not applicable to a case circumstanced as this is, where the receiver is a public officer not interested in the event of the suit, and who receives on account of the United States, where the payments are indiscriminately made, and where sureties under distinct obligations are interested." United States vs. Wardwell et al. ments, made by the debtor, to any account, where the debtor himself had made no application. I have had occasion to consider this point in the case of the If I understand this declaration correctly, it must, with reference to the facts in the case, mean, that where payments have been indiscriminately made, and carried to general account with officers of the United States, the debtor has no right subsequently to direct or alter, the appropriation so made, to any other account or purpose. Neither has the officer acting for the United States a right to assent to or to make such subsequent appropriation. He has no authority to change, on behalf of the United States, the state of any payment as it is first applied on general account. It is then added: "It will be generally admitted, that moneys arising due and collected, subsequently to the execution of the second bond, cannot be applied to the first bond, without manifest injury to the surety on the second bond, and vice versa. I understand this to be no more than an argument from inconvenience; and not an assertion, that all moneys collected subsequently to the second bond are, if passed to general account, to be applied, not to the discharge of the first, but of the second bond. It is then added: "Justice between the different sureties can only be done by reference to the collector's books; and the evidence, which they contain may be supported by parol testimony, if any in possession of the parties interested." I understand from this declaration, that the books of the collector are to furnish the evidence as to the debits and credits, whether on general account, or on special account or appropriation; and that parol evidence is admissible to support that evidence; but not to contradict it. At least the latter position, if not stated nor implied, is not disaffirmed. The decision was, "that the Circuit Court erred in the opinion given." That is, that the Circuit Court erred in instructing the jury, that if they believed, that the supervisor had made the election and promise, as stated in Hughes's deposition, it was a declaration of his election, how the payments of Arthur should be applied, and that whether a formal entry was accordingly made of such appropriation or not, in his books, the jury ought to consider such appropriation as made. United States vs. Wardwell et al. Postmaster General vs. Furber, (Maine,) 1827, and to the opinion there given I deliberately adhere. My judgment is, that, as the credits carried into the general account of Bourne, for disbursements since the second bond was given, far exceed those due by him to the United States, the parties to the first bond are discharged from any responsibility thereon. The bill must therefore be dismissed. Bill dismissed accordingly. Now this opinion of the Circuit Court embraces two points: 1. That the supervisor had a right after such payments upon general account, to make a special application of them to the first bond: 2. That his promise to Hughes was an election to make such special application, and amounted without any farther act done to an actual application according to his promise. The decision of the supreme Court negatives both propositions, and goes no farther. The language of the judge must be construed with reference to them. There is no record of the form of the judgment of reversal, or mandate in this case. In United States vs. Nicoll, (12 Wheaton R. 505, 511,) this case of United States vs. January & Patterson, (7 Cranch, 572,) was referred to by the Court in its opinion, as in point to show, that as to credits after a second bond given, it was at the election of the government to apply them to either account. This is doubtless true, where the debtor makes no other application at the time of the payments or credits. But if the government carry them to general account, it is presumed, that it was not intended to say, that they could afterwards be altered to a special account, by the government, so as to affect sureties. Pratt et al. vs. Northam et al. THOMAS PRATT and ANN F. his Wife, and ROBERT J. AMBROSE, STEPHEN T. NORTHAM and SARAH LANGLEY, Executors of William Langley, and NICHOLAS TAYLOR AND OTHERS, The courts of the United States, as courts of equity, possess jurisdiction to maintain suits in favour of legatees and distributees for their portions of the estate of the deceased, notwithstanding there may be, by the local jurisprudence, a remedy at law on the administration bond, in favour of the party. This class of cases is of concurrent and not of exclusive jurisdiction. A judgment in the court of probate of a state, is not conclusive, where it has been obtained by fraud. The settlement of an administrator's account in the probate court, procured by fraud, is pot conclusive. A bill for a discovery of assets lies in equity, notwithstanding a remedy at law. If an American administrator procure an auxiliary administration in England, and receives from the administrator there, the assets collected under such administra tion, he is chargeable here for the assets so received as administrator. If an administrator be at the same time guardian of the legatees or distributees, and receive foreign assets as abovesaid, and do not inventory or account for them, or procure any settlement of them in the Probate Court, and a distribution of them according to law, he will be deemed to receive them as administrator, and not to retain them as guardian. Some act or admission, showing a retainer as guardian, as an accouting in the probate office as guardian for the same, is necessary to exonerate him from liability as administrator. The sureties of an administrator are liable, in the same manner as their principal, for assets so received, until some act or admission establishing a retainer as guardian. A fortiori the rule is so, where the administrator has never admitted the receipt of such assets as guardian or administrator; but fraudulently concealed the fact from all the parties in interest. The statute of limitations binds courts of equity as well as law, in cases of concurrent jurisdiction; and sometimes, by way of analogy, binds equitable titles. The statute of limitations of Rhode Island, of suits brought against executors and administrators, is a good bar in equity as well as at law. Where an administrator and his sureties die, a suit brought by a legatee or distributee to recover for the default of the original executor in not paying the same, must be brought against the administrator of the executor, or the executor of his sureties, within three years after the last administration is taken out; otherwise it is barred. Who are proper parties to be made in such a case? BILL in equity. The facts of the case were as follows: Adam Ferguson of Newport, Rhode Island, made his will, |