As Mr Sparks will probably leave this in a few days for Boston, I have determined, altho but half settled at home after an absence of 4 or 5 months, to prepare my letter to you that it may be ready for him to take on. The tea cause employed so great a part of the court at Phila. that few others could be tried before the Session came to a close. As that case goes to the Supreme Court, and would have done so, had the decision been on the other side, I shall not report it, particularly as it would require nearly a sheet of paper to embrace all the parts of it necessary to render it intelligible. I am in great hopes that the points which it does present are¹ sufficiently comprehensive to cover the other cases in that & other of the Circuit Courts which remain to be tried.

There is some novelty as well as difficulty in the following cases which were decided.

1. Wisner &c. Ogden admtr pendente lite of Elizabeth Barnet & Oliver Barnet, the husband of defts intestate Barnet, devised as follows "I give to my wife E. B. her heirs & assigns, all my estate real & personal, except my outstanding debts, which I order my sd wife, who I appoint my sole executrix, to collect, and give 3 persons that I shall hereafter direct her to give the same to." E.B. qualified as Exectx, collected the debts, or most of them, & reenvested them in other securities in her own name & died. Ogden qualified as her admtr, during a contest respecting her will. The testator died without naming the 3 persons to whom the debts were intended to be given. This was a bill filed on the equity side of the court by some of the next of kin of the testator to recover the debts so collected as undisposed of, one of the plfs being the brother of the testator, and the other, as well as the rest of the defendants being the children of a sister who died after the testator.

The admtr of Eliz. Barnet claimed the whole of these debts as belonging to her 1. As residuary legatee, under the above devise—or, 2dly, as Executrix or 3dly As a trustee by implication upon a trust which the omission to name the cest[ui] q[ue] T[rusts] prevented her from executing, & therefore the property was not undisposed of, but the trustee took it discharged of the trust. Harding vs. Glyn 1 Atk. 469. Martin vs Douch 1 Ch. Ca. 198.

Decided 1. that E. B. did not take as residuary legatee, the exception being of specific property, (outstanding debts) which it was manifestly the intention of the testator should not go to her, but should go to other persons. Duke of Marlborough vs. Ld Godolphin 2 vez. 61 mainly relied on by defts counsel, wholly unlike the present, in these respects 1st In that, the exception had nothing to operate upon, the £30000 being disposed of, not by the endorsement on the will, but, in the body of it, and the exception applies to "such other legacies as he should endorse on the will." 2. That if the £30.000 had been disposed of by the endorsement, so as to come within the exception, still it would have been an exception of mony, not distinguished or distinguishable from the mass of his property, and therefore it would have expressed no more than the law would have implied without the exception: In this case, the exception is of specific property. These distinctions are relied on by Ld Hardw. in marking the difference between that case & sir J. Davers vs Sir J. Dewer 3 P.W. 40 which I take to be precisely like the present. see also 1 vez. Jr 396.

2. She is not entitled as executrix, upon the principles stated by Fonb[lanc] 2 vol. p. 131 note 11 & the cases there cited, particularly 2 vez. 91. 2 Vern. 676, 1 P.W. 544. 1 Vez. Jr 344.

3. She is not entitled as trustee, there being no necessity to imply a trust for the benefit of the Cest. q. trusts, which the law did not vest in her as executrix. In that character, it was her duty to collect the debts, & to dispose of them as the will directed her. She had no direction to select the objects of the testators bounty, or in making the distribution. Had the 3 persons been named, she woud have been bound to divide the debts amongst them equally unless the testator had otherwise directed. The Cases on this subject are all of trusts raised by a necessary implication to prevent the testators intention from being defeated— The word give in the devise, is used there as synonimous with pay, transfer, deliver over, and vests no discretion in the executor 4 Bac. ab. 339 Wils. Ed. <illegible> Yet. Legacy, letter B.

This suit being brought more than 6 years after the Testators death, 2 questions arose— 1st whether the remedy was barred by the act of limitations? 2dly whether it could be taken advantage of by special demurrer to the bill, that alleging no facts to bring the case within the saving?

1. Decided That the 1st question depends on another—whether by the laws of New Jersey, legatees & distributees have a legal remedy to recover their legacies & distributive shares? if they have, the Stat. of limitations is a bar, otherwise not. I consider the doctrine upon this point to be correctly stated in Kane vs. Bloodgood 7 Johns. C.C. 90— Decouch vs Savetier 3 Johns C.C. 190. Upon a view of opinion that² the courts of law have not a concurrent jurisdiction with the other Courts in cases of legacies of either opinion I gave with hesitation, leaving it open for argument at the hearing on the answer.

2. In cases where, from the allegations in the bill, the Act of Limitations may be urged as a bar, it may be done in the form of a demurrer. See the Cases Jenner vs Tracey 3 P. W. 287. 2 Mad. C. prac. 240 Mitf. 213. 1 Vern. 418. Foster vs. Hodgson 19 vez. 182—Delorain vs. Brown 3 Bro. 646—(Aggas vs. Pickwell 3 Atk. 225 contra) 2 vez Jr 83. 4 Bro. C.C. 254. If the plf would avoid this he ought in his bill to bring himself within some one of the savings in the Act.

Third head of objection was to the want of proper parties.

Decided 1st that the deft Ogden, is not the legal representative of O. Barnet the testator, and therefore, if the bill sought an account of the estate of that testator, or of the debts due to that estate, it would be necessary to make his executor or admtr with the will annexed a party. But since the bill charges that his Executrix collected all the debts, & invested them in other securities in her own name, the next of kin may follow them into the hands of her representative, and claim of him an account & distribution without making the legal representative of A. B. a party.

2. The children of the sister of the testator who died after him are not proper parties, the interest of that sister being vested in her legal representative, for the purpose of paying her debts & distributing according to law. Her executor or administrator ought therefore to have been made a party.

3. If there be more persons³ than one who must necessarily be made parties, and they refuse to unite in the suit, or cannot be made parties plfs. from an objection to the Jurisdiction, the one who can, & does bring the suit, may make those others parties defendants.

Lastly it was decided, that⁴ altho the next of kin cannot claim technically as distributees, properly undisposed of by will, still the executor is considered as a trustee for them, and the Court will adopt the rule of the statue in distributing such property amongst the next of Kin. Davers vs. Dewes 3 P.W. 40.

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(2) U.S. vs Riddle—Ind. for an assault at sea with intent to kill. 2d For forcing the mate of the ship, of which deft was master, on shore, in a foreign port, maliciously & without Justifiable cause. Charge—1st The Jury must be satisfied that the intention with which the assault was committed was to take the life of the person assaulted. Tho it were proved to be with intent to inflict the most cruel pain or torture, that is not sufficient to maintain the prosecution.

2. Under the second count, moral force may support the prosecution, as if the officer or mariner leave the ship under a well founded apprehension that the master will take his life if he remain on board.

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3) Lessee of Ferguson vs. Zepp. The Case turned upon the construction of a will. The Testator devises; as to his worldly goods, as follows— ["]I give to my beloved wife M.D. all and singular my goods and effects, both real & personal. of what kind so ever, or wheresoever, after my debts & funeral expenses are paid." The only other clause in the will is that in which he appoints his wife & S.S. his executors & revokes all former wills. The question was whether the wife took a fee simple in the real estate of the testator? Decided that she did upon the meaning of the expressions "effects real & personal," which for half a century, since the case of Hogan vs. Jackson Cowp. 299 have acquired a technical character & import a fee unless their meaning be restrained by some other expressions or unless a contrary intention appear from other parts or from the whole of the will. see likewise Wright vs Denn 10 Wheat. for what is said of the above case, & the value of the introductory clause, the words "rest & residue" &c.

2. (I went a little out of my way to decide this point, which formerly had perplexed me, and was much laboured by the Counsel in this case, who seemed to think the cause would mainly turn upon it. I studied it under that notion, & having quite Satisfied myself as to the true principles on which the point turned, I gave an opinion on it as if it had been so) If the quantum of estate devised to the wife depended upon the charge for payt of debts and funeral expenses, I should think that insufficient to pass a fee. The principle to be deduced from Doe vs. Richards 3 T. rep. 356. Den vs. Mellor 5 T. Rep. 558. Doe vs. Allen 8 T. rep. 497 and now settled by Wright vs. Den 10 Wheat. 231 is, that where a gross sum. or debts &c. are charged on the estate devised, and not on the devisee, the devisee on a general devise to him takes only as estate for life; but where the charge is on him personally, in respect of the devise there he takes a fee, since he might be a loser in a case where a benefit was intended, if his estate shd terminate with his life. The present case is like that of Den vs. Mallor. "to M.D. after my debts &c. are paid."

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(4) Clark et al. vs Brig Dodge Healy & Cargo— dfts. A state of this case and the opinion was published in the National Gazette, to which I must refer you. It was a claim for the salvage in which it was decided 1. That to entitle the libellants to a reward, they must show, by proof, that the property was saved by their exertions. That⁵ taking possession of the vessel⁶ by the libellants agt the will of the commanding officer, however imminent the danger, but who, if she could be saved by human means, was capable to do it without the forced assistance, is a tortious act, and entitles the libellants to no reward. 2d. The allegations of the libel, which are neither admitted or denied by the answer are not to be taken for true, but must be proved.

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(5.) Blount vs. Darrach. Bill agt the Exectrs of a deceased guardian for an account charging that the account settled by those executors in the orphans Court, and there confirmed, is erroneous in the particulars specially stated. Plea in bar the decree of that court, stating a certain balance due by the guardian, which had been paid to the guardian of the ward appointed by the orphans Court after the death of the first guardian, which latter guardian appeared before the Orphans Court, contested the account & the report thereof made by the Auditors, and succeeded in increasing the balance which was finally decreed to the award, and that this decree remains unappealed from & unreversed. Decided 1st that the decree of the orphans court was that of a court of competent Jurisd. directly upon the matter sought to be litigated in this suit, & between the same parties, and is therefore a bar to this suit. 2d that tho the plf., being an infant at the time of that decree, was entitled to have a day given him, after he came of age, yet that he can be relieved only that court if there is any error in the account, but that this, as a court of concurrent jurisdiction, cant afford it to him. Bill dismissed.

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(6) Post master general vs. Reeder— Debt agt the surety in a postmasters bond. To 5 of the pleas demurrers were filed which presented the questions 1st whether the bond was valid, it being insisted that the Postmaster genl had no right to take it? 2dly whether the omission of the P.M.G. to cause suits to be brought agt the principal in this bond, for his defaults, discharged the Sureties? Decided both in favor of the plf., the 1st on the authority of the P.M.G. vs Early at the last Supreme Court, and the second on those of U.S. vs. Kirkpatrick & U.S. vs. Van Zant, 9th & 11th Wheat.

on a special dem. to one of the pleas, decided, that where the plea is in bar of the action and yet is an answer to only part of the declara. it is bad.

The 4th & 5th pleas state that the omissions of the P.M.G. to cause suits to be brought and to notify the surety of the defaults of the principal were done fraudulently, on which issues in fact were taken. The plf. demurred to the evidence, and I decided that as no part of the evidence conduced to prove either actual or constructive fraud, Judgt must be given in those issues for the plf.

The 7th & 9th pleas⁷ presented the only difficult question, & a very difficult one I found it. It stated that on a certain day, the P.M.G. by a Circular to his different deputies, required them to renew their official bonds, in consequence of which the principal in this bond gave a new bond, with new sureties, in a larger penalty with a condition the same as in the former bond on which this suit is brought, & in addition thereto for the faithful discharge of the duties of the principal in the bond as an agent of the P.M.G.— The breach in the declaration is strictly in conformity with the old bond, for not paying over monies recd by him as postmaster. On this plea issue in fact was taken, denying that any such new bond was given & accepted by the P.M.G.— The evidence stated in the demurrer to it fully establishes the issue of fact in favor of the deft.

Two questions arose on this issue— 1st whether the giving of the new bond terminated the responsibility of the surety in the old one from that time? If it did not, then 2dly what Judgt was to be given?

Decided 1st that the new bond did not operate as an extinguishment, satisfaction or termination of the old bond, or of the deputy's term of office. In point of fact he continued to act as postmaster for 3 years after that bond was given under his original commission. He was not removed by any act of Congress, or by the P.M.G., nor did the giving of the new bond remove or terminate his office by operation of law, and of course, the liability of his surety continued as long as he continued in office. neither can the new bond discharge the surety upon the ground of its changing the contract into which he had entered, since it is the same with the old except as to the superadded duties for which the deft is not liable, & is not charged in this action. A new Commission might possibly Operate by implication to terminate the old one; but I know of no legal principle which can give a like operation to a new official Bond founded on the old Commission.

Since the above opinion was given, I have recd from Mr Wheaton the substa<nce> of the opinion which was delivered at the last S. Court in the case of the U.S. vs Nicolls which I wrote for whilst I was preparing the opinion in this case, but it was then mislaid. (I find from his statement of that opinion, that it almost entirely if not quite confirms⁸ the above the above course of reasoning.)

2. The other quest. was, what Judgt was to be given where issue was taken on a plea which tho true in fact; and that appearing upon a demurrer to evidence, yet presents no legal defence to the action? ought there to be a repleader awarded, or may the Court, by analogy to a verdict finding the issue in favor of the deft, direct Judgt to be entered for the plf, as it might in that case non obstante veredicto?

my opinion was, that where issue is taken on an immaterial part of the plea, so that the court may see that the issue may be amended by repleading, the proper course is to award a repleader. But where the plea sits up as a defence a matter which is no defense at all, it cant be amended by repleading, the defect being inherent in the defense itself, and in that case, if there be a verdict, the Court should give Judgt for plf. non obstante veredicto, & in case of a demurrer to evidence, will enter Judt generally for the plf. upon the insufficiency of the plea see 1 Burr. 292 & the Cases there cited Rex vs. Phillips. Stephens on pleading 117— 118— 140. 141. 164. 165. 149. 150. 1 Wils. 63— I gave Judt accordingly for the plf.

The 10th plea, on which issue was also taken, & the truth of it established by the evidence stated in the demurrer, was, that the P.M.G., on a certain day, wrote to the principal in this bond, not to remit to him the balances due, but to retain them, and to answer his drafts as he should draw for the amount, which matter was plead as a discharge of the surety. I decided unhesitatingly, & almost cum furore, as did Twisden J. before me, that it was no defence at all, & plf. was entitled to Judt on the insufficiency of the plea.

I wish you to consider what is said above on the 7th plea as I feel the difficulty presented by both the questions, particularly the first under that plea.

I have Just left myself room to express my regret at having seen so little of your interesting acquaintance Mr Sparks, who I saw at this place for only an hour or two after my return; and to request an answer as soon as your convenience will permit, together with a report of your Spring Judicial labours. I hope in a few days to have an opportunity to send you the demijohn of wine.

Wishing you long life—uninterrupted heal<th> and as much happiness here below as is good for us & an eternity of it hereafter. I am most truly my dear Sir yr friend & Affect Servt