County.-County of Suffolk.—Curtesy.

ment after nonsuit, discontinuance, &c., is a part | between them? There could be no hesitation of the limitation act of 1812, and that a suit com- in so modifying the decisions as to conform to menced within the time prescribed, arrests the any legislative alteration in a statute; and why limitation; and this, being the decision of the should not the same rule apply where the judi highest judicial tribunal on the construction of a cial branch of the state government, in the exerstate law relating to titles and real property, cise of its acknowledged functions, should, by must be regarded by this court as the rule to construction, give a different effect to a statute bind its judgment. Henderson and Wife v. Grif- from what had at first been given to it? The fin, 5 Peters, 151. charge of inconsistency might be made with bunals for a disregard of this rule than for conforming to it. They profess to be bound by the local law, and yet they reject the exposition of that law, which forms a part of it. It is no answer to this objection, that a different exposition was formerly given to an act which was adopted by the federal court. The inquiry is, What is the settled law of the state at the time the deci sion is made? This constitutes the rule of property within the state, by which the rights of litigant parties must be determined. Ibid.

626. The course of prudence and duty in ju-more force and propriety against the federal tri dicial proceedings in the United States courts, when cases of difficult distribution as to power and right present themselves, is to yield rather than encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur in which the maintenance of principles and the administration of justice, according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty; but until then, it is administering justice in the spirit of the constitution, to conform as nearly as possible to the administration of justice in the Courts of the several states. Fullerton et al. v. The Bank of the United States, 1 Peters, 614.

631. As the federal tribunals profess to be governed by this rule, they cannot act inconsistently by enforcing it. If they change their decision, it is because the rule on which the decision was founded has been changed. Ibid.

632. The exposition of the acts of the several 627. The supreme court have uniformly adopt- legislatures is the appropriate duty of the state ed the decisions of the state tribunals respect-courts; and the federal courts will always feel ively in the construction of their statutes. This has been done as a matter of principle, in all cases where the decision of a state court has become a rule of property. Green v. Neal, 6 Peters, 291.

628. In a great majority of the causes brought before the federal tribunals, they are called on to enforce the laws of the states. The rights of parties are determined under these laws; and it would be a strange perversion of principle if the judicial exposition of these laws by the state tribunals should be disregarded. These expositions constitute the law, and fix the rule of property. Rights are acquired under this rule; and it regulates all the transactions which come within its scope. Ibid.

629. On all questions arising under the constitution and laws of the Union, the supreme court may exercise a revising power; and its decisions are final and obligatory on all other judicial tribunals, state as well as federal. A state tribunal has a right to examine any such questions, and to determine thereon; but its decisions must conform to that of the supreme court, or the corrective power may be exercised. But the case is very different when the question arises under a local law. The decision of this question by the highest tribunal of a state should be considered as final by the supreme court; not because the state tribunal in such a case has any power to bind the supreme court, but because, in the language of the court, in the case of Shelby et al. v. Guy, 11 Wheat. 361, "a fixed and received construction by a state in its own courts makes a part of the statute law." Ibid.

630. If the construction of the highest judicial tribunal of a state forms a part of the statute law, as much as an enactment by the legislature, how can the supreme court make a distinction

great reluctance in breaking the way in explana tion of such statutes; and will not do so, unless really necessary for the decision of cases before them. Coates, Executrix, v. Muse's Administrator, 1 Brockenb. C. C. R. 539.

633. The courts of the United States are not concluded in a matter of general equity jurisdiction, by a decision of the state corrt. Flagg v Mann, 2 Sumner's C. C. R. 487.

COUNTY.

Where an arm of the sea, or creek, haven, basin, or bay, is so narrow that a person standing on one shore can reasonably discern or distinctly see, by the naked eye, what is doing on the opposite shore, the waters are within the body of a county. In such waters, it seems that the admiralty and common law courts have concurrent jurisdiction. The United States v. Grush, 5 Mason's C. C. R. 290.

COUNTY OF SUFFOLK.

The county of Suffolk, in which the city of Boston is included, extends to all waters between the circumjacent lands, down to the Great Brew. ster and Point Allerton. The United States ▼. Grush, 5 Mason's C. C. R. 290.

CURTESY.

1. It seems that the rigid rules of the common law do not require that the husband shall have had actual seisin of the lands of the wife, to entitle himself to a tenancy by curtesy, in waste

Covenant.

or what is sometimes styled "wild lands." Davis et al. v. Mason, 1 Peters, 506.

2. If a right of entry on lands exists, it ought to be sufficient to sustain the tenure acquired by the husband, where no adverse possession exists. Ibid. 508.

3. At present it is fully settled in equity, that the husband shall have curtesy of trust, as well as of legal estates, of an equity of redemption, of a contingent use, or money to be laid out in lands. Ibid.

4. In Maine, a husband is entitled to hold a trust estate of his wife, as tenant by the curtesy. Robinson v. Codman, 1 Sumner's Rep. 121.

statute. In the absence of such proof, the title shown by the party in possession is so complete as to prove, in an action upon a covenant against encumbrances, that a recovery obtained by the adverse claimant was not by a paramount legal title. Somerville v. Hamilton, 4 Wheat. 230; 4 Cond. Rep. 436.

6. Although many nice distinctions are to be found in the books, upon the question, whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent, yet it is evident the inclination of courts have strongly favoured the latter construction, as being obviously the most just. The Bank of Columbia v. Hagner, 1 Peters, 464.

5. In Rhode Island, a husband is not entitled to a life estate, as tenant by the curtesy, of any remainder or reversion owned by his wife, but only of real estate of which she has actual seisin and possession in fee. Stoddard v. Gibbs, 1 Sum-pretation of contracts, are to be governed by the ner's Rep. 263.

COVENANT.

1. A trustee is, in general, suable only in equity, and if he chooses to bind himself by a personal covenant, he is liable at law for a breach of it; although, in the instrument, he describes himself as trustee. Duvall v. Craig, 2 Wheat. 45; 4 Cond. Rep. 25.

7. The general principle adopted by civilized nations is, that the nature, validity, and inter

laws of the country where the contracts are made, or to be performed. But the remedies are to be governed by the laws of the country where the suit is brought; or, as it is compendiously expressed, by the lex fori. Because an action of covenant will lie in Kentucky, on an unsealed instrument, it will not lie in another state, where covenant can only be brought on an instrument under seal. The U. S. v. Donally, 8 Peters, 361.

8. Parol evidence is not admissible in an ac2. Where the parties to a deed, covenanted tion of covenant of seisin to prove prior claims severally against their own acts and encum-in law. Pollard v. Dwight, 4 Cranch, 421; 2 brances, and also to warrant and defend against Cond. Rep. 157. their own acts, and those of all other persons, 9. A covenant under seal to come to a settlewith an indemnity in lands of an equivalent value ment within a limited time, and to pay the bain case of eviction; it was held that these cove-lance which might be found due, is merely nants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands; but that it was sufficient to allege a prior encumbrance by the acts of the grantors, &c., and that the action might be maintained on the first covenant in order to recover pecuniary damages. Ibid.

3. Where the grantors covenant generally against encumbrances made by them, it may be construed as extending to several, as well as joint encumbrances. No profert of a deed is necessary where it is stated only as inducement, and where the plaintiff is neither a party nor privy to it. Ibid.

4. An averment of an eviction under an elder title is not always necessary to sustain an action on a covenant against encumbrances: if the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the covenant. Ibid.

collateral, and cannot be pleaded as an extinguishment of a simple contract debt, the period within which the settlement was to be made having elapsed before the commencement of the suit, and the plea not averring that such settlement had been made. Baits v. Peters and Stebbins, 9 Wheat. 556; 5 Cond. Rep. 675.

10. In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount; but no formal terms are prescribed in which the averment is to be made. Day v. Chism, 10 Wheat. 449; 6 Cond. Rep. 181.

11. Where it was averred in such a declaration, "that the said O had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law," it was held sufficient as a substantial averment of an eviction by title paramount. Ibid.

12. Where plaintiffs declared in covenant both as heirs and devisees, without showing in particular how they were heirs, and without setting out the will, it was held not to be fatal on general demurrer. Ibid.

5. Where the defendant in ejectment for lands in North Carolina has been in possession under title in himself, and those under whom he claims, for a period of seven years, or upwards, such possession is, by the statute of limitations of North Carolina, a conclusive legal bar against the action by an adverse claimant, unless such claimant brings himself, by positive proof, with- 14. A covenant by an executor, on a convey. in some of the disabilities provided for by that | ance of land of his testator, in his capacity as

13. An action may be sustained on a covenant of seisin, although the plaintiff has never been evicted; and the declaration need not aver an eviction. Pollard et al. v. Dwight et al., 4 Cranch, 421; 2 Cond. Rep. 157.

Covenant.

executor, "and not otherwise," is not binding ou him in his individual capacity. Thayer v. Wendell, 1 Gallis. C. C. R. 37.

15. A covenant, that the premises sold were, in due form of law, extended upon, and taken in execution to satisfy a debt due to the testator, and that all the forms of law relating to the setting off, &c., have been complied with, is a covenant for the regularity of the proceedings only, and not for the validity of the title. Ibid.

23. The holder of property let upon ground rent, where there is a covenant to pay the rent, although the same was not made by the holder is liable to pay the ground rent, so long as pos session is retained by him. Hurst v. Rodney, 1 Wash. C. C. R. 375.

24. Where the covenants are dependent, the plaintiff cannot support his action for a breach, without showing performance on his part of every affirmative covenant; and it is competent to the defendant to show a breach of such as are negative. But where the covenants are independent, the defendant cannot be permitted to avail him self of a breach of those to be performed by the plaintiff, under the plea of covenants performed with leave, &c. Webster v. Warren, 2 Wash. C. C. R. 456.

16. Action of covenant, upon an agreement under seal, entered into in 1804, in which the defendant bound himself to pay to the plaintiff two notes of twelve hundred and fifty dollars each, and an unliquidated demand, when it should be liquidated, forthwith; after the defendant should obtain, or be in a legal capacity to obtain the lawful possession of the Georgia 25. Where, in a building contract, the followlands conveyed by him to E. G. The declara-ing covenant was contained: "The said houses tion averred, that on and ever since the 1st of May, 1806, the defendant was in the legal capacity to obtain, &c.; and, on this, issue was joined: Held, that until the defendant was in the legal capacity to obtain possession of the lands, the plaintiff's claim was suspended; and as soon as the capacity existed, the plaintiff's right accrued, although the defendant did not choose to obtain, or endeavour to obtain the possession. Bleecker v. Bond, 3 Wash. C. C. R. 529.

17. The mortgagee of the defendant, as the agent of the defendant, having received, from the United States, compensation for the lands conveyed to the defendant, by E. G.; and he having conveyed the land to the United States, they being part of the Yazoo lands, the defendant is estopped thereby, from denying his legal capacity to obtain possession of the lands. Ibid.

18. Covenant will not lie upon words in an instrument inserted by way of condition or defeasance, by the performance of some collateral act. United States v. Brown, 1 Paine's C. C. R.

422.

19. So upon a penal bond, conditioned that one should account for public moneys, property, &c.: Held, that the covenant would not lie upon the condition. But the covenant will lie upon the bond itself; but the breach assigned must be the nonpayment of the penalty. Ibid.

20. Where covenant was brought upon bond itself, and the breach assigned was the nonperformance of the condition, it was held bad on demurrer. Ibid.

21. Where the whole consideration for any stipulation fails, or it becomes incapable of being performed substantially, as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. Kleine v. Catara, 2 Gallis. C. C. R. 61.

22. When the covenants in an agreement are dependent and concurrent, the plaintiff must aver and prove performance, or offer to perform the covenants on his part; and to ascertain what covenants are of this description, the intention of the parties is to be sought for rather in the order of time in which the acts are to be done, than from the structure of the instrument. Goodwin v. Lynn and Butts, 4 Wash. C. C. R.

714.

to be completely finished on or before the 24th of December next, under a penalty of one thousand dollars, in case of failure:" it was held that this was not intended as liquidated damages for the breach of that single covenant only, but applied to all the covenants made by the same party in that agreement; that it was in the nature of a penalty, and could not be set off in an action brought by the party to recover the price of the work. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

26. An agreement to perform certain work within a limited time, under a certain penalty, is not to be construed as liquidating the damages which the party is to pay for the breach of his covenant. Ibid.

27. To avoid circuity of action, a covenant may be pleaded as a release; but it must be a covenant between the parties only and if it contains no words of release, it will not be construed such, unless it gives the covenantor a right of action, which will precisely countervail that to which he is liable; and unless, too, it was the intention of the parties that the last instrument should defeat the first. Garnett, Ex'r of Brook v. Macon et al., 2 Brockenb. C. C. R. 185.

28. Action of covenant brought by the plaintiff in error, to recover the amount of certain rents alleged to have been due and in arrear from the defendant since the death of his intestate, under an indenture, by which an annual rent was reserved out of the property conveyed by the indenture, and which the grantee covenanted to pay; a clause of re-entry for non-payment of the rent being contained in the deed. By the court:-It is firmly established, that on a covenant to pay rent, reserved by the deed granting real estate subject to the rent, the personal representatives of the covenantor are liable for the non-payment of the rent after an assignment, although there may be a good remedy against the assignee. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England. Scott v. Lunt's Adm'r, 7 Peters, 596.

29. A covenant to suspend proceedings upon a judgment, until another security given by the defendant is exhausted, and proves inadequate, not being perpetual, does not release the judg

Coverture.-Creditor.

ment. The judgment continues in full force, with all its legal incidents attached to it. Scriba & Co. v. Deans et al., 1 Brock. C. C. R. 166.

30. Query, Where a man covenants to convey land, and breaks his covenant to convey, in order to avail himself of their increased value, and an action of covenant is brought to recover damages for the breach, if the value of the lands at the time of trial should not be the standard of damages? Letcher & Arnold v. Woodson, 1 Brock. C. Č. R. 212.

female, and her children, as his slaves: Held, that they were free by virtue of the deed of manumission executed by the wife. Wallingford v. Allen, 10 Peters, 583.

4. Agreements between husband and wife, during coverture, for the transfer by him of property directly to the latter, are undoubtedly void at law. Equity examines them with great caution, before it will confirm them. But it does sustain them when a clear and satisfactory case is made out, that the property is to be applied to 31. But it seems that where a man contracts the separate use of the wife; where the consifor the sale of lands without fraud, and it after-deration of the transfer is a separate interest of wards appears, that he had in truth no title to the lands when the contract was entered into; and in consequence of his want of title he refuses to convey; the standard of damages in an action founded upon the covenant, is the value of the lands at the time of the contract entered into, and not their value at the time of trial. Ibid.

32. Whether the jury, in such a case, should allow interest upon the value of the lands at the date of the contract, must depend upon the circumstances of the case, of which they are the proper judges; and it is competent for the defendant to give in evidence to the jury any circumstances tending to show that interest should not be allowed. Ibid.

COVERTURE.

1. By the law of Maryland, a married woman cannot dispose of real property, without the consent of her husband; nor can she execute a good and valid deed to pass real estate, unless he shall join in it. The separate examination and other solemnities required by law are indispensable, and must not be omitted. A deed, therefore, executed by a married woman, of real property, acquired by her while a feme sole trader, while she was abandoned by her husband, is void. Rhea et al. v. Rhenner, 1 Peters, 109.

2. The privy examination and acknowledgment of a deed, by a feme covert, so as to pass her estate, cannot be legally proved by parol testimony. Elliott et al.v. Peirsol et al., 1 Peters,

337.

the wife, yielded up by her for the husband's benefit, or of their family; or which has been appropriated by him to his uses; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property for her use. Either case equity will sustain, though no trustee has been interposed to hold for the wife's use. Ibid.

5. Marriage of the plaintiff, pendente lite, does not of itself abate the suit. The objection can only be made available by plea in abatement. Chirack v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310.

6. The incapacities of femes covert provided by the common law, apply to their civil rights, and for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. These political rights do not stand upon the mere doctrines of municipal law, applicable to general principle of the law of nations. Shanks ordinary transactions, but stand upon the more et al. v. Dupont, 3 Peters, 248.

CREDITOR.

1. If a factor, with a del credere commission, sells the goods of his principal, and takes negotiable securities in payment, and fails before they become due, and assigns the securities to his assignees for the benefit of his creditors, and the assignees receive the money when the notes become due, the principal may recover from the assignees, subject to a deduction of the commission of the factor for his commission and charges. Thompson v. Perkins, 3 Mason's C. C. R. 232.

2. It is not a fraud upon any attaching creditor, to provide for the payment of all the creditors in preference to one who means to attach by process the property conveyed. Halsey v. Whitney, 4 Mason's C. C. R. 206.

3. A wife having separated herself from her husband, for ill-treatment by him, applied to the county court of Prince George, Maryland, for alimony, which was allowed to her, pendente lite. The husband gave the wife a female negro slave, and some other property, in discharge of the alimony. She removed to Washington, hired out the slave, and afterwards, in conside- 3. The assent of creditors to an assignment ration of a sum of money, and for other conside-not stipulating for a release may be presumed. rations, she manumitted, by deed, the slave, and Aliter, if a release is stipulated for. Ibid. her two infant children, the eldest not being 4. If the terms of a covenant by creditors to three years old. Some time after the arrange-indemnify the debtor against claims under them ment between the husband and wife, a final are general, it will be construed a several coveseparation took place between them, by a verbal nant by each creditor, unless they consent to agreement; each to retain "the property each relinquish a part of their debts. Ibid. had, and to be quits forever," and the wife relinquished all further claim for alimony. After the death of the wife, the husband claimed the

5. Where a bill of lading consigns the property for sales and returns, the consignee can alone endorse the bill of lading so as to pass the title

Destroying a Vessel at Sea, to the Injury of the Underwriters.

to the goods, But subject to such an endorse- | married woman suing by her next friend, to re ment to a purchaser, the consignee may by a cover a legacy bequeathed to her, where the legal conveyance assign a legal title to them, so husband has transferred all his marital rights, in as to be good against his own creditors, D'Wolf the legacy, to his wife. Gallego v. Gallego's v. Harris, 4 Mason's C. C. R. 515. Ex'r, 2 Brockenb. C. C. R. 285.

11. An insolvent debtor has a right to prefer one creditor to another in payment, by an assignment made bona fide; and no subsequent 1. Destroying a Vessel at Sea to the Injury of the attachment, or subsequently acquired lien, will avoid such assignment. Spring et al. v. South Carolina Ins. Co., 8 Wheat. 268; 5 Cond. Rep. 434.

14. A court of equity will sustain the bill of a | 363.