Certiorari. Challenge of Jurors. that the whole case cannot be adjourned on a division of the judges, the court cannot decide the case in its present form. The cause was remanded to the circuit court of Kentucky for further proceedings, this court not having jurisdiction over the question stated. Ibid. 267. 93. Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause, the supreme court cannot be called on to express an opinion on the whole facts of the case, instead of upon particular points of law, growing out of the same. Adams, Cunningham, & Co. v. Jones, 12 Peters, 207. 94. The intention of congress, in passing the act authorizing a division of opinion of the judges of the circuit court of the United States to be certified to the supreme court, was, that a division of the judges of the circuit court upon a single and material point, in the progress of the cause, should be certified to the supreme court for its opinion, and not the whole cause. When a certificate of division brings up the whole cause, it would be in effect, if the court should decide it, the exercise of original, rather than appellate jurisdiction. White v. Turk et al., 12 Peters, 238. journed from the district court, they were certified to the supreme court, on the motion of the counsel for the petitioner. Held, that the district judge cannot sit as a member of the circuit court upon questions adjourned to that court, under the "act to establish a uniform system of bankruptcy throughout the United States;" consequently, the points adjourned cannot be brought before the supreme court by a certificate of division. Nelson v. Carland, 17 Peters, 181. CERTIORARI. 1. A certiorari is not a proper proceeding to issue from a superior to an inferior court, to remove a cause merely from a defect of jurisdiction. Fowler et al. v. Lindsey, 3 Dall. 411; 1 Cond. Rep. 189. 2. A certiorari can only issue as an original process, to remove a cause and change the venue, where the superior court is satisfied that a fair and impartial trial will not otherwise be obtained: and it is sometimes used as an auxiliary process; where, for instance, diminution is alleged on a writ of error; but, in such cases, the superior court must have jurisdiction of the controversy. Ibid. 3. A certiorari will be awarded upon a sug gestion that the citation has been served, but not sent up with the transcript of the record. Field v. Miller, 3 Cranch, 514; 1 Cond. Rep. 612. 4. If the original judgment be reversed, the reversal of the judgment on the forthcoming bond follows, of course; but a special certiorari is necessary, to bring up the execution upon which the bond was given, so as to show the connection between the two judgments. Barton v. Petit, 7 Cranch, 288; 2 Cond. Rep. 494. 95. Action in the district court of the United States, for the southern district of New York, by the United States against the defendant, for a penalty under the act of 1838, "to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam." A verdict was rendered for the United States; and, without a judgment on the verdict, the case was, by consent, moved to the circuit court of the United States. In the circuit court certain questions were presented on the argument, and a statement was made of those questions, and they were certified, pro forma, at the request of the counsel for the parties, to the supreme court, for their decision. No difference 5. A return to a certiorari from the supreme of opinion was actually expressed by the judges court, upon a suggestion of diminution in the of the circuit court. By the court:-The judg-record, may be made by the clerk of the circuit ment or other proceedings on the verdict ought court, and need not be made by the judge of the to have been entered in the district court, and it court below. Stewart v. Ingle, 9 Wheat. 526; was altogether irregular to transfer the proceed-5 Cond. Rep. 659. ings in that condition to the circuit court. The case was remanded to the circuit court. The United States v. Samuel B. Stone, 14 Peters, 524. 96. In some cases, where the point arising is one of importance, the judges of the circuit court have sometimes, by consent, certified the point to the supreme court, as upon a division of opinion; when, in truth, they both rather seriously doubted, than differed about it. Those must be cases sanctioned by the judgment of one of the judges of the supreme court in his circuit. Ibid. 97. In the case of Nelson, a petitioner in bankruptcy in the Kentucky district, against Carland, an opposing creditor, several points were adjourned by the district to the circuit court. Upon the hearing of the case in the circuit court, the district judge, as well as the justice of the supreme court, sat in the case; and being opposed in opinion upon questions ad CHALLENGE OF JURORS. 1. On an indictment for casting away and destroying a vessel, of which the defendant was owner, with intent to prejudice the underwriters; the defendant has a right to challenge thirty-five of the jurors, the number of challenges allowed at common law, in capital cases. United States v. Johns, 1 Wash. C. C. R. 363. 2. After a juror is sworn, it is too late to object that he belongs to another county. Hepburn v. Mima Queen, 7 Cranch, 290; 2 Cond. Rep. 496. 3. If a juror be challenged for favour, and upon examination before the triers, he declares that if the evidence should be equal, he would give a verdict in favour of the party upon whom the burden of proof lies, the court, in its discre tion, ought to reject him as a juror. Ibid. General Principles. 4. After a prisoner has challenged a juror, he may retract the challenge, and the juror be sworn. United States v. Porter, 2 Dall. 345. 5. It is no ground for a challenge to the array, that the officer, who summoned the jury, is a citizen and resident of a state, under the_grant of which one of the parties claims title. Fowler v. Lindsey, 3 Dall. 411; 1 Cond. Rep. 189. 6. But it is a good cause of challenge to the array, that the officer is interested in part of the same tract of land, under colour of the same title with plaintiff. Ibid. ment is alleged to have been committed, it is a good cause of challenge. Ibid. 419, 420. 15. There exists the same right of challenging, for favour, the grand jury as the petit jury. Ibid. 38. 16. On a challenge of a grand juror for favour, the proper questions to be propoun ed to him are, "have you made up your mind on the case, or on the guilt or innocence of the defendant; and have you formed, or expressed, or delivered an opinion on the guilt or innocence of the accused?" Ibid. 7. Where one of the jurors, in a trial for treason, had previously made declarations, as well in relation to the prisoner personally, as to the CHANCERY AND CHANCERY PRACTICE. general question of the insurrection, manifesting a bias or predetermination, a new trial will be awarded. United States v. Fries, 3 Dall. 515. 8. Though alienage may be a good cause of challenge to a juror, yet advantage cannot be taken of the circumstances after verdict. Hollingsworth v. Duane, 4 Dall. 353. 9. In a capital case, the court may set aside jurors whose religious principles make them conscientiously scrupulous of finding, under any proof, a verdict of guilty. United States v. Cornell, 2 Mason's C. C. R. 91. 10. On an indictment for murder on the high seas, under the act of April 30th, 1790, ch. 36, the defendant, under the twenty-ninth section of that act, is limited to twenty peremptory challenges. United States v. Magill, 1 Wash. C. C. R. 463. 11. It is not a sufficient ground to disqualify an individual from being a juror, that he has formed an opinion on any fact conducive to the final decision of the case; but if the opinion formed be on a point so essential as to go far towards a decision of the whole case, and to have a real influence on the verdict to be rendered, there is no important distinction between such a person and one who has, in his mind, decided the whole case. The question must always depend on the nature and extent of the opinion that has been formed. 1 Burr's Trial, 417. 12. On a trial for treason, it is not a sufficient objection to a juror that he did believe, and had said, that the prisoner, at a time considerably anterior to the fact charged in the indictment, entertained treasonable designs; but if he has made up and declared the opinion, that to the time when the fact, laid in the indictment, is said to have been committed, the prisoner was prosecuting the treasonable design with which he is charged, it furnishes a just cause of challenge. Ibid. 13. The proper question to be propounded to a juryman in such a case is, "have you made up and delivered the opinion, that the prisoner is guilty or innocent of the charge laid in the indictment?" Ibid. 418. 14. If the juror has made up and delivered the opinion, that the prisoner entertained the criminal designs with which he is charged, and that he retained those designs, and was prose. cuting them when the act charged in the indict 1. General principles 2. Jurisdiction 3. Parties to a bill in chancery. 4. Bill in chancery ....... 5. Answer and pleas in chancery 6. Process in chancery....... .Page 285 ..... 310 313 7. Relief in chancery. Fraud, trust, mistake, specific performance 8. Commissioners and auditors in chancery 1. General Principles. 1. An assignee of an assignor of a copartner in a joint purchase and sale of lands, may sus tain a bill in equity with the other copartners, and the agent of the concern, to compel a discovery of the quantity purchased and sold, and for an account and distribution of the proceeds. Pendleton & Weber v. Wambersie et al., 4 Cranch, 73; 2 Cond. Rep. 32. 2. If the obligee of a bond obtain titles in his own name for part of the lands, the assignment of which to the obligor was the consideration of the bond, and suffer the titles to the residue of the lands to be lost by the non-payment of taxes, a court of equity will not lend its aid to carry into effect a judgment at law upon the bond. Skillern's Executors v. May's Executors, 4 Cranch, 137; 2 Cond. Rep. 56. 3. A court of equity will annul a contract which the defendant has failed to perform, and cannot perform on his part. Ibid. 4. A court of equity will not interfere between a donee of land by deed, and a devisee under a will of the donor, in a case where there is no fraud. Viers and Wife v. Montgomery, 4 Cranch, 177; 2 Cond. Rep. 74. 5. No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on a suggestion supported by doubtful or only probable testimony. But if palpable errors be shown, errors which cannot be misunderstood, the settlement must so far be considered as made upon absolute mistake or imposition; and ought not to be obligatory on the injured party or his representatives, because such items cannot be supposed to have received his assent. The whole labour of proof lies on the party objecting to the account; and errors which he does not plainly establish, cannot be General Principles. supposed to exist. Chappedelaine v. Decheneaux, | acres, in Kentucky, equally between his wife 4 Cranch, 306; 2 Cond. Rep. 116. 6. The endorsee of a promissory note, in Virginia, may recover the amount from a remote endorser in equity, though not at law. Riddle & Co. v. Mandeville et al., 5 Cranch, 322; 2 Cond. Rep. 268. 7. Equity will make that party immediately liable who is ultimately so at law. Ibid. 8. The remote endorser has the same defence in equity against the remote endorsee, as against his immediate endorsee. Ibid. 9. The report of auditors, appointed by consent of parties in a suit in equity, is not in the nature of an award by arbitrators; but may be set aside by the court, although neither fraud, corruption, partiality, or gross misconduct, on the part of the auditors, be proved. Field et al. v. Holland et al., 6 Cranch, 8; 2 Cond. Rep. 285. 10. A court of equity may ascertain the facts themselves, if the evidence enables them to do it, or may refer the question to a jury, or to auditors. After an issue ordered, a court of equity may proceed to a final decree, without trying the issue, or setting aside the order. Ibid. 11. The practice in Kentucky to call a jury to ascertain the facts in chancery causes is incorrect. Massie v. Watts, 6 Cranch, 148; 2 Cond. Rep. 336. 12. A suit in chancery, by one who has the prior equity, against him who has the eldest patent, is in its nature local; and if it be a mere question of title, must be tried in the district where the land lies. Ibid. 13. But if it be a case of contract, or trust, or fraud, it is to be tried in the district where the defendant may be found. Ibid. 14. An endorsee of a promissory note, payable to order, cannot, in Virginia, maintain an action of law upon the note against a remote endorser, but he may in equity. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep. 543. and son, with a devise over to her, in fee, of the son's moiety, if he died before he attained "the lawful age to will it away;" and the residue of his estate, real and personal, to be divided equally between his wife and son, with the same contingent devise over to her as with regard to the tract of ten thousand acres. The value of the property thus devised to her, beside the contingent interest, might have been estimated, at the time of H.'s death, at ten thousand dollars. B. subsequently died, having made a nuncupative will, by which she devised all her estate, "whether vested in her by the will of her de ceased husband or otherwise," to be divided between her son and plaintiff in the cause, with a contingent devise of the whole to the survivor. The son afterwards died, and the plaintiff brought his bill to charge the lands of H. with the payment of the bond, for five thousand dollars and interest, to which the plaintiff derived his right under the nuncupative will of B. By the laws of Kentucky this will did not pass the real estate of the testator, but was sufficient to pass her personal estate, including the bond. Held, that the provision in the will of H. for his wife, must be taken in satisfaction of the bond, but subject to her liberty to elect under the will and the bond; and that this privilege was extended to her devisee, the plaintiff. Hunter et al. v. Bryant, 2 Wheat. 32; 4 Cond. Rep. 17. 16. Áctual maintenance is equivalent to the payment of a sum secured for separate maintenance, and, therefore, interest upon the bond during the husband's lifetime was not allowed. Ibid. 17. Under all the circumstances of the case, it was determined the bond was chargeable on the residue of the estate; and was chargeable on the personalty first in order. Ibid. 18. Even courts of law have recognised the lien of a broker for a general balance of account; and much more so ought a court of equity, in the application of a principle so peculiarly its own, as that which gives effect by a transfer by assignment of a chose in action, not in its nature negotiable. Leeds v. The Marine Ins. Co., 6 Wheat. 565; 5 Cond. Rep. 188. 19. A deposit of title-deeds as security for a debt, creates a lien, which is considered an equi table mortgage. Mandeville v. Welch, 5 Wheat. 277; 4 Cond. Rep. 642. 20. So also the deposit of a note not negotiable as a security for a debt, will entitle the creditor, after notice to the maker, to enforce in equity his lien against the depositor, and his assignees in bankruptcy. Ibid. 15. H., in contemplation of marriage with B., gave a bond for five thousand dollars and interest, to trustees, to secure to B. a support during the marriage, and after the death of H., in case she should survive him, and to their child or children, in case he should survive her; with condition, that if H. should, within the time of his life, or within one year after the marriage, (whichsoever of the said terms should first expire,) convey to the trustees some good estate, real or personal, sufficient to secure the annual payment of three hundred dollars, for the separate use of his wife during the marriage, and also sufficient to secure the payment of the said five thousand dollars to her use, in case she should survive her husband, to be paid within six months after his death, and in case of her death before her husband, to be paid to their child or children; or if H. should die before B., and by his will should, within a year from its date, make such devises and bequests as should 22. A vague legacy, the object of which is be adequate to these provisions, then the bond to indefinite, cannot be established under the equity be void. H. died, leaving his widow B. and a son, power of the courts of the United States, on the having, by his last will, devised a tract of one ground of its being a charity. Baptist Associa thousand acres of land, in the Mississippi terri- tion v. Hart's Ex'rs., 4 Wheat. 1; 4 Cond. Rep tory, to his son, in fee; a tract of ten thousand | 371. 21. But this doctrine proceeds on the supposition that this lien is clearly established to have been made as security for the debt; and not upon the ground that the mere fact of the de posit, unexplained, affords such proof. Ibid. General Principles. 23. In appeals to the supreme court, from the circuit courts, in chancery cases, the parol testimony which is heard at the trial in the court below, ought to appear in the record. Conn v. Penn, 5 Wheat. 424; 4 Cond. Rep. 716. 24. The remedies in the courts of the United States, at common law, and in equity, are to be, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished in that country from which we derive a knowledge of those principles. Consistently with this doctrine, it may be admitted, that where, by the statutes of a state, a title which would otherwise be deemed merely equitable, is recognised as a legal title, or a title which would be valid at law, is, under circumstances of an equitable nature, declared void, the rights of the parties in such case may be as fully considered in a suit at law, in the courts of the United States, as in any state court. Robinson v. Campbell, 3 Wheat. 212; 4 Cond. Rep. 235. 25. The endorser of a promissory note, who has been charged by due notice of the default of the maker, is not entitled to the protection of a court of equity as a surety; the holder may proceed against either party at his pleasure, and does not discharge the endorser by not issuing, or by countermanding an execution against the maker. Lenox v. Prout, 3 Wheat. 520; 4 Cond. Rep. 311. 26. R. C., a citizen of Virginia, being seised of real property in that state, made his will. "In the first place, I give, devise, and bequeath unto J. L.," and four others, "all my estate, real and personal, of which I may die seised and possessed, in any part of America, in special trust that the aforementioned persons, or such of them as may be living at my death, will sell my personal estate to the highest bidder, on two years' credit and my real estate on one, two, and three years' credit, provided satisfactory security be given, by bond, and deed of trust. In the second place, I give and bequeath to my brother, T. C.," an alien, "all the proceeds of my estate, real and personal, which I have herein directed to be sold, to be remitted to him according as the payments are made; and I hereby declare the aforesaid J. L." and the four other persons, "to be my trustees and executors for the purposes aforementioned:" Held, that the legacy given to T. C., in the will of R. C., was to be considered as a bequest of personal estate, which he was capable of taking for his own benefit, though an alien. Craig v. Leslie, 3 Wheat. 563; 4 Cond. Rep. 331. 27. A defendant in equity, who has obtained a patent for land not included in his entry, but covered by the complainants' entry, will be decreed to convey it to the complainants; but the complainants will not be required to convey it to the defendant, as land which they obtained a patent for, which was covered by the defendant's entry, but which, by mistake, he omitted to survey. Bodley et al. v. Taylor, 5 Cranch, 191; 2 Cond. Rep. 227. 28. The first survey, under a military landwarrant in Virginia, gives the prior equity. The survey is the act of appropriation. Taylor & Quarles v. Brown, 5 Cranch, 234; 2 Cond. Rep. 235. 29. The equity of the prior location extends to the surplus land surveyed, as well as to the quantity mentioned in the warrant. Ibid. 30. The patent relates to the inception of title; and, therefore, in a court of equity, the person who has first appropriated the land, has the best title, unless his equity is impaired by the circumstances of the case. Ibid. 31. In equity, time may be dispensed with, if it be not of the essence of the contract. Hepburn & Dundas v. Colin Auld, 5 Cranch, 262; 2 Cond. Rep. 247. 32. If an agent locate land for himself, which he ought to locate for his principal, he is, in equity, a trustee for his principal. Ibid. 33. A bond executed in pursuance of articles of agreement, may, in equity, be restrained by those articles. Finley v. Lynn, 6 Cranch, 238; 2 Cond. Rep. 358. 34. A complainant in equity may have relief even against the admissions in his bill. Ibid. 35. He who has equal equity may acquire the legal estate, if he can, so as to protect his equity. Fitzsimmons et al. v. Ogden et al., 7 Cranch, 2; 2 Cond. Rep. 395. 36. Between merely equitable claimants, each having equal equity, he who has the precedency in time, has the advantage in right. Ibid. 37. The construction of a letter of credit, or of guarantee, must be the same in a court of equity as in a court of law; and any facts which might be introduced into one court, to explain the transaction, may be introduced into the other. Russell v. Clark's Ex'rs., 7 Cranch, 69; 2 Cond. Rep. 417. 38. A merchant who endorses the bill of another, upon the guarantee of a third, cannot, upon the insolvency of the principal debtor, and of the guarantor, resort to a trust fund created by the principal debtor for the indemnity of the guarantor, for the amount which the guarantor should pay. But the person for whose benefit a trust is created, who is to be the ultimate receiver of the money, may sustain a suit in equity, to have it paid directly to himself. Ibid. 39. When the guarantor is insolvent, a court of equity will not decree the money raised for his indemnity to be paid to him, without security that the debt to the principal creditor should be satisfied. Ibid. 40. A court of chancery cannot allow a part of the purchase-money in lieu of dower, when the estate is sold; unless by consent of all the parties interested. Herbert et al. v. Wren and Wife et al., 7 Cranch, 370; 2 Cond. Rep. 534. 41. Equity considers land directed, in wills or other instruments, to be sold and converted into money, as money; and money directed to be employed in the purchase of land, as land. Craig v. Leslie, 3 Wheat. 563; 4 Cond. Rep. 331. 42. The heir at law has a resulting trust in such lands, after the debts and legacies are paid, and may come into equity and restrain the trustee from selling more than sufficient to pay them; or may offer to pay them himself, and pray a General Principles. conveyance of the part of the land not sold in | recording of the deed, in which new county the the first case, and the whole in the latter, which property, in either case, will be land, and not money. Ibid. 43. Equity will extend the same privilege to the residuary legatee, which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate; or to restrain the trustees from selling more than is necessary to pay the debts and legacies. Ibid. 44. But if the intent of the testator appears to have been to stamp upon the proceeds of the land directed to be sold, the quality of personalty, not only for the particular purposes of the will, but to all intents, the claim of the heir at law to a resulting trust is defeated, and the estate is considered to be personal. Ibid. 45. Where the whole beneficial interest in the land or money, thus directed to be employed, belongs to the person for whose use it is given, a court of equity will permit the cestui que trust to take the money or the land at his election, if he elect before the conversion is made. Ibid. 46. But in case of the death of the cestui que trust, without having determined his election, the property will pass to his heirs or personal representatives, in the same manner as it would have done if the conversion had been made, and the trust executed in his lifetime. Ibid. 47. Charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity; either exercising its ordinary jurisdiction, or enforcing the prerogative of the king as parens patriæ, independent of the statute, 43 Eliz. Baptist Association v. Hart's Ex'rs., 4 Wheat. 1; 4 Cond. Rep. 371. 48. If, in England, the prerogative of the king, as parens patriæ, would, independent of the statute of Elizabeth, extend to charitable bequests of this description-Query, How far this principle would govern in the courts of the United States? Ibid. 49. The English statute, 43d Elizabeth, gives validity to some devises to charitable uses, which were not valid, independent of that statute: Held, that it was unnecessary to enter into this inquiry, because it could only arise where the attorney-general is made a party. Ibid. 50. A bill for rescinding a contract for the sale of lands, on the ground of defect of title, was dismissed with costs. Orr v. Hodgson, 4 Wheat. 453; 4 Cond. Rep. 506. 51. Under the registry act of Ohio, which provides that certain deeds "shall be recorded in the county in which the lands, tenements, and hereditaments, so conveyed or affected, shall be situate, within one year after the day on which such deed or conveyance was executed; and, unless recorded in the manner, and within the time aforesaid, shall be deemed fraudulent against any subsequent bona fide purchaser, without knowledge of the existence of such former deed of conveyance;" lands lying in Jefferson county, Ohio, were conveyed by deed; and a new county, called Tuscarora county, was erected partly from Jefferson, after the execution, and before the lands were included, and the deed was recorded in Jefferson: Held, that the registry was not sufficient, either to preserve its legal priority, or to give it the equity arising from constructive notice. Astor v. Wells, 4 Wheat. 466; 4 Cond. Rep. 513. 52. If the case be clear, a court of equity will interpose to quiet the title to land. Alexander and others v. Pendleton, 8 Cranch, 462; 3 Cond. Rep. 216. 53. If the execution of an important exhibit of the complainants be not admitted by the defendant in his answer, who calls upon the complainant to make full proof thereof in the court below, the supreme court will not presume that any other proof was made than appears in the transcript of the record. Drummond, Adm'r., v. Magruder & Co., Trustees, 9 Cranch 122; 3 Cond. Rep. 303. 54. If the supreme court reverse a decree upon a technical objection to evidence, (probably not made in the court below,) it will not dismiss the bill absolutely, but remand the cause to the court below, for further proceedings. Ibid. 55. If the defendant in a proceeding in chancery, assert a fact which is not, and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his own assertion. The strength of his belief may have betrayed him into a mode of expression of which he was not fully apprized. When he intended only to utter a strong conviction of the existence of a peculiar fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief on that deduction, in terms which convey the idea of his knowing the fact itself. Clark's Ex'rs. v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 56. The case before the supreme court, presented a question under a bill in chancery, to obtain from the defendants a conveyance of a tract of land in Kentucky, held by them as the property of the original grantee, confiscated by the state, and claimed by the plaintiffs under an equity arising from a sale made by the original grantee of another tract of land, to which it was alleged he erroneously supposed himself legally entitled, under the same warrant and survey. The bill was dismissed. Russell and others v. The Trustees of The Transylvania University, 1 Wheat. 432; 3 Cond. Rep. 614. 57. An agreement in a court of common law, chancery, or prize, made under a clear mistake, will be set aside. The Aurora, 1 Wheat. 96; 3 Cond. Rep. 501. 58. Where a contract for the sale of land has been in part executed by a conveyance of part of the land, and the vendor is unable to convey the residue, a court of equity will decree the repayment of a proportionate part of the purchase-money, with interest. Pratt and others v. Law and others, 9 Cranch, 456; 3 Cond. Rep. 460. 59. It is a rule, both of law and equity, that a party must recover on the strength of his owr title, and not on the weakness of his adversary's. Watts v. Lindsey's Heirs, 7 Wheat. 158; 5 Cond. Rep. 261. |