Divided Court.

court of New York, on a motion for a new trial, could not be certified to the supreme court. The parties agreed that the case should stand as if a judgment had been entered in the circuit court of New York, and a writ of error prosecuted. The court went on to decide the case. Grant et al. v. Raymond, 6 Peters, 218.

moved to dismiss the suit, on the ground that it did not survive. On this motion, the judges of the court were divided in opinion; and the same was certified, for its decision, to the supreme court. Davis v. Braden, 10 Peters, 286.

80. A question, whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise, is one within the direction of the court, to which the motion for the purpose is submitted; and it cannot be certified to the su

are divided in opinion. Lanning's Lessee v. Vaughan et al., 10 Peters, 367.

75. The defendant was indicted on the twentyfourth section of the act of congress of 2d March, 1825, entitled "an act to reduce into one, the several acts establishing and regulating the post-preme court, if the judges of the circuit court office department:" for advising, procuring, and assisting one J. S., a mail-carrier, to rob the mail; and being convicted, he submitted a motion in arrest of judgment: one reason in support of which motion was, that the indictment did not sufficiently show an offence against the said act, because the same did not directly charge, or otherwise aver, that the said J. S. did actually rob the mail; and upon argument, the judges were opposed in opinion on this question, viz.; whether an indictment grounded on the said statute for advising, &c., a mail-carrier to rob the mail, ought to set forth and aver that the said carrier did commit the offence of robbing the mail; and therefore the judges directed the same to be certified to the supreme court. United States v. Mills, 7 Peters, 138.

76. In this case the defendant was indicted and convicted of robbing the United States' mail, and being pardoned by the President of the United States, a question arose in the circuit court of the United States, whether the defendant should plead the pardon. On this question the judges of the court were opposed in opinion, and the question was certified to the supreme court for its decision. United States v. Wilson, 7 Peters, 150.

77. This case was submitted to the circuit court, on a statement of facts agreed upon by the counsel of the plaintiff, and the district attorney of the United States. The whole of the agreed facts were sent up with the record. Upon the trial and statement of facts in the cause, certain questions had occurred, on which the opinions of the judges were opposed; and the points of disagreement were certified to the supreme court for their decision. The court decided on all the questions certified, with one exception. Harris v. Elliott, 10 Peters, 25.

81. Certain points, on which the judges of the circuit court were divided in opinion, were certi fied to the supreme court, by the circuit court of Rhode Island. The whole of the matters in the case, were sent up in the record. The question certified, was, whether a confirmatory act of the assembly of Rhode Island, was sufficient to divest the title of those who claimed the land, and gave a title to the grantees on a deed confirmed by the act. This question was presented, in effect, in six questions, on which the judges of the circuit court were opposed in opinion. The certificate of the supreme court stated that the court was of opinion, that the grantees in the deed confirmed by the legisla ture of Rhode Island, took an absolute title to the premises in dispute in the cause: which opinion answers the first, second, third, fourth, and sixth question so certified; and also the fifth question, except that part of the fifth question which refers to a description of the premises, and which is not so stated as to enable the supreme court to express an opinion. Leland et al. v. Wilkinson, 10 Peters, 294.

82. Questions respecting the practice of the circuit court in equity cases, which depend on the sound discretion of the court, in the application of the rules which regulate the course of equity proceedings, to the circumstances of such particular case; are not questions which can be certified, on a division of opinion of the circuit court. Packer v. Nixon, 10 Peters, 408.

83. The questions certified to the supreme court were, whether, on certain facts which were in evidence in the cause, the deed was admissible in evidence, under the acts of the legis latures of North Carolina and Tennessee; and 78. An action of assumpsit was commenced whether certain evidence, which was given on by the plaintiff against the collector of the port the trial, did or did not conduce to prove that of New York, to recover a sum paid to him for the defendants purchased under a particular duties on certain goods; the goods not being person. On these questions, the judges of the liable, under the law, to the duties charged by circuit court of Tennessee were opposed in opithe collector. On the trial of the cause, the nion; and the same were certified, and answerjudges of the circuit court of the southern dis-ed by the supreme court. Denn, Lessee of Scott, trict of New York were opposed in opinion, as to the construction of the act of congress, by which the duties were claimed; and being so opposed in opinion, the question as to the construction of the law, was certified to the supreme court for decision. Elliott v. Swartwout, 10 Peters, 137.

79. An action of detinue was instituted in the circuit court of West Tennessee, to recover a slave. During the progress of the suit, the defendant died; and his personal representative

v. Reid et al., 10 Peters, 524.

84. On an indictment for passing a silver coin of Spain, called "a head pistareen," the judges of the circuit court of New Jersey were opposed in opinion: 1. Whether the head pistareen was a part of the Spanish dollar? 2. Whether it is made current by a law of the United States? These questions were certified to the supreme court; and the indictment and a special verdict, containing all the facts of the case, were sent up with the record. The court directed an an

Divided Court.-Domicil.-Dower.

swer, in the negative, to be certified to the circuit court. United States v. Gardner, 10 Peters,

618.

85. An action of debt was instituted on an act of the legislature of New York, to recover certain penalties, for bringing into the state of New York certain paupers, in violation of the provisions of the act. The declaration set out the law of New York, and the breach of its provisions, by the defendant. The defendant demurred to the declaration, and the plaintiff joined in the demurrer. The judges of the circuit court of the southern district of New York were opposed in opinion on the question whether the act of the legislature of New York, mentioned in the declaration, assumes to regulate commerce between the port of New York and foreign ports. This was certified to the supreme court. City of New York v. Miln, 11 Peters,

102.

division of opinion between the judges was cer tified to the supreme court, and by that court it was certified that the circuit court had jurisdiction of the case. Boone et al. v. Chiles et al., 8 Peters, 532.

90. The judges of the circuit court of Massachusetts were opposed in opinion on five points which arose on the trial, before a jury, of the cause; and they were, with all the evidence, certified to the supreme court for its decision. Carrington et al. . The Merchants' Ins. Co., 8 Peters, 495.

91. The judges of the circuit court of Kentucky were divided in opinion on a motion for instructions to the jury, made by the defendant's counsel, that, on the evidence, the jury should find that the defendant was not guilty of the offence for which he was indicted. This was certified to the supreme court, and the court directed a certificate that the evidence was suf 86. In an action on a policy of insurance, on ficient to authorize a condemnation of the dethe steamboat Lioness, the defendant filed cer- fendant, the case being within the provisions of tain pleas, to which the plaintiffs demurred; and the act of congress on which the defendant was on the argument on the demurrer, the judges of indicted. United States v. Bailey, 9 Peters, 238. the circuit court were opposed in opinion; and 92. The defendant was indicted under the act the same were certified, at the request of the of March 3, 1823, entitled "an act for the punishdefendant. The questions certified were: 1. ment of frauds committed on the government Whether the policy covered a loss by fire, caused of the United States." The counsel for the deby the barratry of the master? 2. Does the fendant moved the court to instruct the jury that policy cover a loss by fire, caused by the negli- the evidence did not conduce to establish the gence, carelessness, or unskilfulness of the mas- offence denounced in the first section of the act, ter and crew, or any of them? 3. Is the alle- which motion the attorney of the United States gation, that the loss by fire was caused by the opposed, and on this question the opinions of the negligence, careless neglect, or unskilful conduct of the master and crew, a defence to the action? 4. Are the pleas, or either of them, sufficient? The supreme court decided the first, second, and third questions in favour of the plaintiff, and certified the same to the circuit court; and also that the pleas in bar, or either of them, were not a defence to the action. Waters v. The Merchants' Louisville Ins. Co., 11 Peters, 213.

87. The defendant was indicted for forging a bill of the Bank of the United States; and the judges of the circuit court of the United States for the Pennsylvania district, being opposed in opinion, whether the same was a bill of the Bank of the United States, according to the eighteenth section of the act, granting a charter to the bank; the same, with the indictment, was certified to the supreme court for its decision. United States v. Brewster, 7 Peters, 164.

88. The opinions of the judges of the circuit court of Pennsylvania were opposed in opinion, on a question arising on a demurrer, by the United States, to a plea of autre fois acquit, to an indictment for passing a counterfeit bank note of the Bank of the United States; and the same was certified to the supreme court. United States v. Randenbush, 8 Peters, 288.

89. The judges of the circuit court of Kentucky were divided in opinion, whether, on the whole circumstances appearing in the case, the court can have jurisdiction. The bill on the equity side of the court, and the answer of the defendants, upon which the question of jurisdiction arose, were sent up with the record. The

judges were opposed. The whole case, and the question on which the judges were divided, were certified to the supreme court. The court were of opinion, that the whole case having been certified to the supreme court, and it having been repeatedly decided by the court 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. United States v. Bailey, 9 Peters, 267.

DOMICIL.

See COMMERCIAL DOMICIL.-Ants, page 363.

DOWER.

1. Where the vendee of real estate had purchased it subject to the dower of the widow, of which dower he might have been informed if he had used proper diligence, a court of equity will not interfere to release the vendee, but will leave him to such legal remedy as he may be entitled to, in case his title should, at any future_time, be disturbed. Greenleaf v. Queen et al., 1 Peters, 147.

2. The doctrines of the common law on the subject of dower, although since altered by an act of assembly of Maryland, were still the law of Maryland when the United States assumed jurisdiction over the District of Columbia; and

Dower.

the act of congress of February 27th, 1801, which provides for its government, declares that the laws of Maryland, as they then existed, should continue and be in force in that part of the district which was ceded by that state. Stille v. Carroll, 12 Peters, 201.

3. According to the principles of the common law, a widow was not dowable in her husband's equity of redemption; and if a man mortgages in fee before marriage, and dies without redeeming the mortgage, the widow is not entitled to dower against the mortgagee. Ibid.

an estate by the purchaser, dower is to be of the estate according to the value which it would have had at the time of the assignment if no such improvements had been made. Ibid.

13. But though the increased value arising from the improvements actually made upon the premises by the alienee are to be included, yet the dowress will be entitled to the full benefit of any increase of value arising from other causes; such as the growth of the country. Ibid. 14. The widow is entitled to dower of real estate mortgaged by the husband alone after 4. Mortgages were made during the coverture, marriage, and subsequently aliened by him; but the mortgage deeds were acknowledged by and upon which he had, after the marriage, the wife upon privy examination, and these ac-made improvements estimated according to the knowledgments, under the acts of the assem- value at the time of the alienation, including the bly of Maryland, 1715, ch. 47, and 1766, ch. 14, improvements. Ibid. bar the dower in the lots thus conveyed to the mortgagee. The legal estate passed to the mortgagee, and the husband retained nothing but the equity of redemption; and as the wife had no right of dower in this equitable interest, a subsequent deed conveyed the whole of this interest in the estate, and was a bar to the claim of dower. It was not necessary for the wife to join in such a deed, as she had no right of dower in the equity of redemption which was conveyed by the deed. Ibid.

15. The main mill wheel and gearing of a factory, attached to the factory, and necessary for its operations, are fixtures and real estate, to which the right of dower attaches. Ibid.

16. Where a deed was executed in Massachusetts, by a husband, of lands owned by him in that state, in March, 1808, and afterwards, in November, 1808, his wife signed and sealed the same deed, with the following words written over her signature, "I agree in the above conveyance, in witness whereof," &c., giving the date, &c.: 5. Dower is assignable of real estate mort- it was held that, by the local law, such a congaged by the husband after the marriage, with-veyance did not operate as a release of her dower out the wife's joining in the deed, and subse- in the estate so conveyed. Hall v. Savage, 4 quently aliened by him; but in the mean time Mason's C. C. R. 273. improvements made thereon by him, according to the value at the time of the alienation, including the improvements. The mortgage does not bar the dower in the improvements. Powell v. Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R. 459.

6. Courts of chancery have concurrent jurisdiction with courts of law, in cases of dower, especially where partition, discovery, or account is prayed, and in cases of sale, where the parties are willing that the sum in gross should be given in lieu of dower. Herbert et al. v. Wren et al., 7 Cranch, 370; 2 Cond. Rep. 539.

7. If a devise of land in Virginia, to the widow, appear, from circumstances, to be designed as in lieu of dower, she must make her election, and cannot take both. Ibid.

8. If a wife join her husband in a lease for years she is entitled to dower in the rent. Ibid. 9. A court of chancery cannot allow a part of the purchase money in lieu of dower, where the estate is sold, unless by consent of all parties interested. Ibid.

10. A deed of land executed by husband and wife, but containing no words of grant by the wife, does not convey her estate in the land, nor her right of dower. Powell v. The Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R.

347.

11. It seems that an implied, and even an express assent of the husband to the release, without joining in the deed, is not sufficient to give validity to the release, the release having been executed by the wife alone. Ibid.

12. Where improvements have been made on

17. A bill in equity lies for dower. A deed of land executed by husband and wife, but containing no words of grant by the wife, does not convey her estate in the land, nor her dower. Powell v. Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R. 347.

18. Dower is to be according to an increase of value not arising from the improvements of the purchaser, but from the general growth of the country, or other general causes. Ibid.

19. Dower is not allowable in an estate, of which the husband is trustee only. Ibid.

20. In a bill for dower against the purchaser from the husband, the dower is to be laid off by metes and bounds, in some part of the land which has not been improved by the purchaser, if this can conveniently be done; and if this cannot be done, then it is to be assigned out of the whole, according to the value thereof, at the time it was alienated to the husband. Leggett v. Steele, 4 Wash. C. C. R. 305.

21. Query, If the widow is entitled to rents and profits, damages and costs; and from what time, if at all? Ibid.

22. Under the act of assembly of Virginia, (1 Rev. Co., ch. 107, sec. 10,) which declares, that if a wife willingly leave her husband, and go away and continue with the adulterer, she shall forfeit her dower, &c.; that part of the provision which relates to her willingly leaving her hus band, is satisfied by any separation which is voluntary on her part: and any separation is voluntary which is not brought about by her husband's act, or by some constraint on her perTherefore, where the husband wished his

son.

Droit D'Aubain.-Duress.

Duties on Imported Merchandise, and Tonnage.

DUTIES.

worsted suspenders with cotton straps, or ends, are not subjected to a duty of fifty per centum

1. Duties on imported merchandise and tonnage, Page 588 ad valorem. Elliott v. Swartwout, 10 Peters,

1. Duties on Imported Merchandise, and Tonnage.

1. In point of fact, no duties, as such, can legally accrue upon the importation of prohibited goods. They are not entitled to entry at the custom-house, or to be bonded. M'Lane v. The United States, 6 Peters, 404.

2. The legislature did not, in the enactments in reference to drawback, intend to supersede the common principle of the criminal as well as the civil jurisprudence of the country, that ignorance of the law will not excuse its violation. Barlow v. The United States, 7 Peters, 404.

3. Sugars were seized on an allegation that they were of a different quality from that stated in the entry. By the court :-The statute under which these sugars were seized and condemned is a highly penal law, and should, in conformity with the rule on the subject, be construed strictly. If, either through accident or mistake, the sugars were entered by a different denomination from what their quality required, a forfeiture is not incurred. United States v. Eighty-four Boxes of Sugar, 7 Peters, 453.

4. Sugars have been made subject to duties upon their importation, from the first establishment of the government down to the present time, in every tariff law; so that, if an entry under the eighty-fourth section were required only upon the exportation of dutiable articles, which had been imported, all sugars, whether refined or not, might have been within the provisions of that section. Ibid.

5. The power of congress to levy and collect taxes, duties, imposts and excises, is coextensive with the United States. Loughborough v. Blake, 5 Wheat. 317; 4 Cond. Rep. 660.

6. The denomination of merchandise subject to the payment of duties is to be understood in a commercial sense, although it may not be scientifically correct. All laws regulating the payment of duties are for practical application to commercial operations, and are to be understood in a commercial sense. And it is to be presumed that congress so used and intended them to be understood. United States v. One Hundred and Twelve Casks of Sugar, 8 Peters,

277.

7. Under the sixty-fifth section of the duty act of 1799, when a bond has been given for duties, and errors in the calculation thereof are alleged on affidavit, at the first term to which suit has been brought on the bond, a delay of one term is allowed for the purposes of examination and correction. Where there is a real defence to the claim on the bond, an opportunity to obtain evidence by a continuance, according to the circumstances of the case, must be given. The United States v. Phelps, 8 Peters, 700.

8. Under the act of congress, passed on the 14th of July, 1832, entitled "an act to alter and amend the several acts imposing duties on imports," ," worsted shawls with cotton borders, and

137.

goods, are intended for practical use and appli9. Laws imposing duties on importation of cation, by men engaged in commerce; and hence it has become a settled rule in the interpretation of statutes of this description, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used. Ibid.

10. Round copper bars, and copper plates, turned up at the edges, are not subject to duty under the acts of congress of 20th July, 1789, and 10th August, 1790, and the act of 2d May, 1792, by which " copper in plates, and copper in pigs and bars," are exempted from duty. The United States v. Kid and Watson, 4 Cranch, 1; 2 Cond. Rep. 1.

11. "Round copper bottoms, turned up at the edge," are not liable to duties, although imported under the denomination of "raised bottoms." The United States v. Potts et al., 5 Cranch, 284; 2 Cond. Rep. 259.

12. The duty on salt, which ceased on the 31st December, 1807, was not chargeable on a cargo which arrived within the collection district before that day, but did not arrive at the port of entry until after January 1, 1808. Duties upon goods imported, do not accrue until after the arrival of the vessel at the port of entry. The United States v. Vowell, 5 Cranch, 368; 2 Cond. Rep. 280.

13. A registered vessel, sold, in part, while at sea, without a bill of sale reciting the register, as required by the act of congress, is not subjected to increased duties on her cargo in the ports of the United States. Willings v. The United States, 4 Cranch, 48; 2 Cond. Rep. 20.

14. Wine and spirits saved from a wreck, and landed, are not liable to forfeiture because unaccompanied with marks and certificates, as required by law; nor because of their having been removed without the consent of the collector, before the quantity and quality were ascertained, and the duties paid. Peisch et al. v. Ware et al., 4 Cranch, 347; 2 Cond. Rep. 137.

15. The law punishes the attempt, and not the intention, to defraud the revenue. The United States v. Riddle, 5 Cranch, 311; 2 Cond. Rep. 266.

16. The penalty of the fiftieth section of the collection law of the second of March, 1799, which requires a permit for the landing of goods imported, applies to goods, the importation of which is prohibited by law. Harford, Claimant, v. The United States, 8 Cranch, 109; 3 Cond. Rep. 55.

17. If the condition of a bond be to pay one thousand seven hundred dollars, or the duties which may be ascertained upon certain goods imported; it is not in the option of the obligor to discharge the bond by the payment of the one thousand seven hundred dollars. Ibid.

18. If captured goods, claimed by a neutral owner, be, by consent, sold by an order of the