the other joint contractors, because the contract being joint and not several, there can be but one recovery. Consequently the plaintiff, if he proceeds against one only of the joint contractors, loses his security against the others, the rule being that by the recovery of the judgment, though against one only, the contract is merged and a higher security substituted for the debt. Sessions v. Johnson, 95 U. S. 347; Mason v. Eldred, 6 Wall. 231. From which it follows, if the theory of the complainants is correct that the bond is to be regarded as the joint bond of the three partners, that they are without remedy against the other two, as they have proceeded to final judgment against the claimant. Neither of the other partners signed the bond but the complainants allege that the firm directed the claimant to give the bond for and in the name and style of their said partnership as obligors; to which it may be answered that if the firm gave such directions the claimant did not follow them, as the bond set forth in the record as an exhibit to the bill of complaint shows that it is the individual bond of the alleged senior partner. Nor do the complainants pretend that the other partners ever signed the instrument, but they contend that the demurrer admits every thing which they have alleged. Matters of fact well pleaded are admitted by a demurrer, but it is equally well settled that mere conclusions of law are not admitted by such a proceeding. Dillon v. Barnard, 21 Wall. 430; Ford v. Peering, I Ves. Ch. 71; Lea v. Robeson, 12 Gray (Mass.), 280; Redmond v. Dickerson, I Stockt. (N. J.) 507; Murray v. Clarendon, Law Rep. 9 Eq. 17; Nesbitt v. Berridge, 8 Law Times, N. s. 76; Story, Eq. Plead. (7th ed.), sect. 452. Facts well pleaded are admitted by a demurrer; but it does not admit matters of inference or argument, nor does it admit the alleged construction of an instrument when the instrument itself is set forth in the record, in cases where the construction assumed is repugnant to its language. Authorities to that effect are numerous and decisive; nor can it be admitted that a demurrer can be held to work an admission that parol evidence is admissible to enlarge or contradict a sealed instrument which has become a matter of record in a judicial proceeding. Beckham | p. 46 v. Drake, 9 Mee. & W. 78; Humble v. Hunter, 12 Law Rep. Q. B. 315; McArdle v. The Irish Iodine Company, 15 Irish C. L. 146; Sprigg v. Bank of Mount Pleasant, 14 Pet. 201. Mere legal conclusions are never admitted by a demurrer; nor would it benefit the complainants even if it could be held otherwise, as it must be conceded that the theory of the bill of complaint is that the liability of the three partners is a joint liability, and it is equally well settled that a judgment against one in such a case is a bar to a subsequent action against either of the others, as appears from the authorities already cited, to which many more may be added. Robertson v. Smith, 18 Johns. (N. Y.) 459; Ward v. Johnson, 13 Mass. 148; Cowley v. Patch, 120 id. 137; Smith v. Black, 9 Serg. & R. (Pa.) 142; Beltzhoover v. The Commonwealth, I Watts (Pa.), 126. Where the contract is joint and several the rule is different, to the extent that the promisee or obligee may elect to sue the promisors or obligors jointly or severally; but even in that case the rule is subject. to the limitation that if the plaintiff obtains a joint judgment he cannot afterwards sue the parties separately, for the reason that the contract or bond is merged in the judgment, nor can he maintain a joint action. after he has recovered judgment against one of the parties, as the prior judgment is a waiver of his right to pursue a joint remedy. Sessions v. Johnson, supra. Concede that, and still the complainants aver that they did not know, when they obtained their decree against the claimant and his sureties, that the property belonged to the partnership, or that the bond for value was in fact given by the claimant pursuant to the direction of the other partners. Averments in a bill of complaint that the parties to a judicial proceeding understood that the legal effect would be different from what it really is, amounts merely to an averment of a mistake of law against which there can be no relief in a court of equity. Hunt v. Rousmaniere's Administrators, I Pet. I. Courts of equity may compel parties to execute their agreements, but they have no power to make agreements or to alter those which have been understandingly made; and the same rule applies to judgments duly and regularly rendered and in | full force. 1 Story, Eq. (9th ed.) p. 47 sect. 121; Bilbie v. Lumley, 2 East, 183. Fraud is not imputed, nor is it charged that there was any mistake or misrepresentation. Where there is neither accident nor mistake, misrepresentation nor fraud, there is no jurisdiction in equity to afford relief to a party who has lost his remedy at law through mere ignorance of a fact, the knowledge of which might have been obtained by due diligence and inquiry, or by a bill of discovery. Penny v. Martin, 4 Johns. (N. Y.) Ch. 566; Anderson v. Levan, I Watts & S. (Pa.) 334. Courts of equity will not grant relief merely upon the ground of accident where the accident has arisen without fault of the other party, if it appears that it might have been avoided by inquiry or due diligence. 1 Story, Eq. (9th ed.), sect. 105. Ignorance of the facts is often a material allegation, but it is never sufficient to constitute a ground of relief, if it appears that the requisite knowledge might have been obtained by reasonable diligence. Id., sect. 146. Relief in equity will not be granted merely because a security in an admiralty suit becomes ineffectual, if it appears that it became so without fraud, misrepresentation, or accident, which might have been prevented by due diligence. Hunt v. Rousmanier's Administrators, 2 Mas. 366; Sedam v. Williams, 4 McLean, 51. Having come to the conclusion that the alleged claim of the United MR. JUSTICE BRADLEY dissented. The Florida. (101 U.S. Reports, 37) 1879. On the night of Oct. 7, 1864, the rebel steamer 'Florida' was captured in the port of Bahia, Brazil, by the United States Steamer 'Wachusett,' and brought thence to Hampton Roads, where, by a collision, she was sunk. The United States disavowed the act of the captain of the 'Wachusett' in making the capture. He libelled the 'Florida' as a prize of war. Held, that the libel was properly dismissed. APPEAL from the Supreme Court of the District of Columbia. On the night of the 7th of October, 1864, the United States steamer 'Wachusett,' under the command of Commander Collins, captured the rebel steamer' Florida,' in the port of Bahia, in the empire of Brazil. The 'Florida' had gone there to supply herself with provisions and for p. 38 the repair of her | engine. She was anchored under cover of a Brazilian vessel of war, on the side next to the shore, and Commander Collins was notified that if he attacked her he would be fired upon by a neighboring fort and by the war vessels of the empire then present. The commander, availing himself of the darkness of the night, approached and fired upon the Florida,' received her surrender, attached a hawser to her extending from his vessel and towed her out to sea. He was pursued by a Brazilian war vessel, but escaped with his prize by superior speed. The steamers reached the United States at Hampton Roads. There the Florida' was sunk by a collision, and lies where she went down. The American consul at Bahia was on board of the 'Wachusett ' at the time of the attack and incited it, and participated in the seizure. He returned to the United States with Commander Collins. The Brazilian government demanded the return of the vessel and other reparation by the United States. The latter disavowed the capture, and the matter was amicably adjusted. The commander libelled the 'Florida' as prize of war. The court below dismissed the case, and he appealed to this court. The case was argued by Mr. Benjamin F. Butler and Mr. Frank W. Hackett for the appellant. The following points are taken from Mr. Hackett's brief : The captors are entitled to have the question of prize or no prize judicially determined. Act June 30, 1864, 13 Stat. 306. The adjudication is essential to their protection against her former owner, and, if in their favor, gives them also the right to proceed against the colliding vessel, if through its negligence the prize was sunk. The Florida's' hull, guns, &c., are of some determinable value, and the question of ownership therein must be decided. There is a res in existence. The ship is sunk in a river. The court will not inquire whether it will pay to raise her. The executive has no right to instruct the judicial branch of the government as to the disposition of this libel, nor should its wishes have any force whatever in a tribunal sitting as a high court of prize. In The Elsebe (5 Rob. 173), where Sir William Scott decided | that the p. 39 power of the crown to direct the release of property seized as prize, before adjudication and against the will of the captors, was not taken away by any grant of prize conferred in the Order of Council, the Proclamation, or the Prize Act, orders had been given by the Lords of Admiralty to release the ships before the question was raised in the prize court. In the case at bar, no such order was ever given or promised to Brazil. For the views of Mr. Wheaton on the subserviency of Sir William Scott to the orders of the crown, see Lawrence's Wheaton, 973; Roberts, Adm. & Prize, 480, 519. In Great Britain, the issue of peace or war is lodged in the crown. The jus persequendi in capture being conveyed only in the Orders in Council, and all claims of the captor subordinated to the right of the crown to make such disposition as it pleases of the captured property, the Queen may control the conduct of a prize suit from the beginning. She has supreme power, with the advice of her council, to relax her belligerent rights, and so far to make law for the prize court. The Phenix, I Spink, 306. The right to capture in the name of the United States comes not from the Executive, but from Congress. Until condemnation, no property vests in the sovereign or the captor. 10 Op. Att.-Gen. 519. Should the government desire immediately to make use of the captured vessel, an appraisement is made, and her value, in case of a subsequent condemnation, represents the prize fund. Act March 3, 1863, sect. 2. The act of June 30, 1864 (supra), although modelled upon the English prize acts, presents certain features essentially distinct from them. In England, the prize court exercises, in time of war only, a peculiar but extraordinary jurisdiction, specially conferred by Parliament. Roberts, p. 40 Adm. & Prize, 444. In this country, the prize courts are ever open to prize causes. Their jurisdiction extends not only to cases specially provided for by Congress, but to limits recognized by international law, or the custom and usage of nations. Id. 445. The captors themselves are authorized, under certain circumstances, to commence proceedings, a right unknown to the English prize law. | The question here is not, as in the 'Elsebe,' whether in time of war the Executive can give up to a foreign nation a captured vessel without making reparation to the captors, but whether, after having gained jurisdiction, and the custody of the vessel, a prize court, sitting in the United States in time of peace, will be controlled by the wishes of the Executive in determining whether the vessel be or be not good prize. The act makes it the duty of the district attorney, upon report of the prize-master, to file a libel against the property, and to proceed diligently to obtain a condemnation and distribution thereof.' Rev. Stat., sect. 4618. The Attorney-General, by opposing this libel and asking its dismissal, is asserting a power not granted by the act. The alleged violation of the neutrality of Brazil is no defence to this 1.bel. This is an objection which the neutral nation alone can interpose. The Lilla, 2 Sprague, 177; The Sir William Peel, 5 Wall. 517; The Adela, 6 id. 266. A capture made within neutral waters is, as between enemies, deemed to all intents and purposes rightful; it is only by the neutral sovereign that its legal validity can be called in question, and as to him, and him only, is it to be considered void. The Anne, 3 Wheat. 435. It was there held that even a consul, unless specially authorized by his government, cannot interpose a claim of violated sovereignty. The Sancta Trinita, cited in a note to The Anne, shows that the French law is like the English and American in this respect. See 3 Phillimore, Int. Law, p. 453, where The Anne is approvingly cited. 1 Kent, Com. (12th ed.) 117, note I; id. 121; The Etrusco, 3 C. Rob. 162, note. It is objecte that the capture of the Florida' was in direct violation of the orders of the Secretary of the Navy, and therefore illegal and void; and that the distribution of the proceeds of her sale as prize would be a reward to officers for disobedience. Those orders are nothing more than regulations for the discipline of the navy Their violation subjects the offender to a court-martial. 'If the sovereign should, by a special order, authorize the capture of neutral property for a cause manifestly unfounded in the law of nations, p. 41 it would afford a complete | justification of the captors in all tribunals of prize.' Maisonnaire v. Keating, 2 Gall. 325. The orders of the Secretary can go no further than international law itself in stamping the capture with illegality. Commander Collins was, by a court-martial, found guilty |