I returned home two or three days ago, after an absence of more than 3 months, when I had the pleasure to recieve from the post office your very friendly and interesting letter of the 2d Septr— For your kind & affectionate wishes for my health I am sincerely grateful to you, as I am for some other expressions which I owe chiefly to your indulgence & partiality. my health is now, thank God, as good as it has been for some years past.

I have gone over the synopsis of the cases decided by you in the spring with great care, and have the pleasure to concur with you in opinion upon all of them.  I hesitated for a while upon the decision in the case of the Schooner Abigail & Cargo inclining at first to the opinion, that the word recovered in the 4th Sect. of the act of 15 may 1820 c. 122 might fairly be construed to mean the proceedings and the trial of the suit. But upon further reflection, I am inclined to think that it applies to the mode of enforcing the forfeiture by seizure &c.— Some of the cases are quite new to me & very interesting. I decided some of the points in the Dower Case in the same manner in the year 1822.

I now proceed to report such of the Cases as were decided at our late Sessions, as are not too much complicated by the facts on which they turned.

(1) Ewer et al vs. Coxe, Cary & Lea. Motion for an injunction by the proprietors of "the Pharmacopæia of the U.S." to prevent the publication of Doct. Coxe's "American dispensatory." It was admitted by the plf.'s Counsel that a copy of the record of the title page of the Pharmacop. had not been published within the period, and for the length of time, prescribed by the 3d Sect. of the act of 31 May [17]90 c. 15. Decided, that this requisition, as well as the one contained in the 4th Sect. are, by the terms of this act, merely directory, and, in this respect, like the stat. 8 Ann. c. 19. But that they are made prerequisites to the vesting of— a copy right in the author or his assignee by the act of the 29th april 1802 c. 36 which enacts that "before he shall be entitled to the benefit of the act to which this is a supplement, he shall in addition to the requisites inform in the 3d & 4 Sect. of said act give information by causing &c"— We construed these words in like manner as if the requisites of those sections, instead of being referred to by the expressions "in addition," had been literally repeated.

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(2d) Couscher vs. Tulane—action of account. decided that upon the Judgt quod computet, the auditors ought to state an account, and not merely report, that nothing is due to the plf.

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(3d) Fairchild vs. Shivers— Rule upon plf. to show his cause of action & why deft should not be discharged on Common bail. The action was brought upon a Judgt rendered in the state of N. York, and the deft, having been discharged from his debts under the insolvent Law of Pennsylva., the question was, whether he ought to be allowed to appear on Common bail? We decided in the negative, the rule of the Court having always been, not to discharge on Common bail, unless the Contract was made, or to be discharged in this state.

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(4th) U.S. vs. Preston assignee of Lea. Assumpsit— the declaration states that Lea being indebted to the U.S. on duty bonds, assignee became insolvent, & made a voluntary assigt of all his estate to the deft who recd therefrom enugh to pay his debt to the U.S. in consideration whereof he promised to pay &c. The facts of the case turned out to be, that the plfs. the surety in the duty bonds, for whose use this suit was brought, paid the amount of the bonds & recd a surrender of them for his indemnity. It was insisted on behalf of the surety, that as by the provision of the 65th Sect of the Collection law of the 2d March [17]99. c. 128, the surety is to have & enjoy the like advantage priority or preference &c. as are reserved to the U.S. he may require the Collector to bring the suit, may proceed agt the persons & affects of the executors or assignees of the principal where they have paid any debt of the insolvent prior to that due to the surety— may demand a trial at the return term of the writ, unless the oath is taken to obtain a continuance which is required where the U.S. are the real plfs.— and finally that he may bring his suit in the federal Court, altho the plf. & defts should be Citizens of the same state. Per Cur.—1. The term advantage is merely used as synonimous with priority & preference & does not comprehend any of the above privileges reserved to the U.S.— The recovery by the surety even where he sues on the bond, is to be out of the the estate & effects of the insolvent or decd person. not out of the estate of the Exect. or assignee; and if he chuses to resort, not to his statutory remedy, but to the common law remedy, he cant claim an advantage which he would not in the former case have been entitled to. So to demand a trial at the return term would be most unreasonable, since the principal may have many defences to make agt the surety which he could not set up agt the U.S.— He ought therefore to have time to plead & prepare for the trial— So too, this section does not confer Jurisdiction by the general words^{1 "}the proper Court having cognizance thereof." In the patent law, the copyright law, & the law incorporating the Bank of the U.S. it is given to the federal courts by express words. 2d. This action is not maintainable in any Court, in the name of the U.S. to whom the debt has been paid by the surety, because one obligor, tho a Surety, who has paid the debt, cant maintain an action upon the bond in the name of the obligee agt his Co-obligor the principal, nor even an action for mony laid out and advanced. Had he sued on the bond, or in assumpsit in his own name no objection could have been raised.

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5— Zane vs. Brig President—appeal— The Brig having been sold under a decree of the D.C. for seamans' wages, and a balance remaining in the registry of that Court, the appellant filed a petition stating that, whilst the brig lay at Baltimore, he, upon the application of the master, furnished her with a parcel of water casks which were essential to equip her for her intended voyage, and for which the master promised to pay upon the return of the vessel to that port or upon his own return, & praying to be paid his demand out of the balance of the proceeds of the brig remaining in court. The vessel was foreign— Decided 1. That for the materials so furnished the appellant had a lien on the brig— The Genl Smith—The Aurora—The Jerusalem 2 Gal. 345. 2d. The giving of credit, amounted to a waver of the lien— Ex parte Lewis 2 Gall. 483. Raitt vs Mitchel 4 Camp. 146.

3d. Water Casks furnished to a foreign vessel as a necessary part of her equipment are of the nature of materials which create a lien, if it be not waved, quite as much so, as ship Chantbury. 4th. Altho the lien was waved so as to preclude the appellant from enforcing it by an original libel agt the vessel, or from his being considered as a privileged Creditor, Ex parte Lewis 2 Gall. yet he is entitled to proceeds agt remnants & surplus in the registry unclaimed except by the owner. The Favourite 2 Rob. 232—The New Jersey 1 Pet. A.R 223. The John 3 Rob. 234. (The above case was thought so important that the opinion was published in extenso in the Phila papers.)

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6th. Worthington vs. Preston. Case— by the owner of a fugitive slave agt the Gaoler for not safely keeping the said slave. The magistrate who examined into the claim of the plf. gave him the Certificate required by law, after which, the plf. took the slave to the gaol, & delivered him to the gaoler, who put him into the yard, enclosed by a high wall, where all the other prisoners were. He was directed by the plf not to lock him up until he had had his supper. Whilst the gaoler was having the supper prepared, the slave, with the aid of the other prisoners, escaped over the wall. The legislature of Pennsylva. in 1789 passed a law granting to the U.S. the use of her Gaols and making the gaolers liable for the escape of prisoners committed by legal process issued under the authority of the U.S. in like manner as if committed by process issued under the state authority— Decided 1. The examining magistrate has no authority, under the fugitive act of Congress, to issue a warrant to apprehend the alleged slave, or, after granting the Certificate, to grant a warrant of Commitment—his authority is special— But pending the examination, and whilst the fugitive is in custodia legis, he may commit, till the examination is finished. Even, then, if he had in this case granted the warrant of Commitment, after the Certificate, the deft would not have been liable for an escape, officially, under the above act of assembly. But in this case no warrant was granted. 2d. As the deft was to receive no reward for the safe keeping of this slave, he is not liable upon the contract of bailment unless he was guilty of gross negligence, which cant be alleged in a case where the slave was placed in the same yard with the other prisoners, & particularly where he was injoined to let him remain there till he had his supper, before which he escaped.

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7. U.S. vs. Barker was a Case of great consequence, involving much of the doctrine of notice to the drawers & indorsers of protested bills of exchange and when by the Custom it must be given. But as it goes to the Sup. Crt I shall not trouble you with a report of the points decided. I rejoice however that it will afford an opportunity to revise the Cases of Barry & Brown & Clark vs Russel 3 Dall.

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(8) H. Darst et al vs. Roth. Covenant— The declara. is in the name of H. Darst & two others & states that "they, by the name & description of H. Darst & Co., and the deft entered into an agreement under their respective hands & Seals, whereof profert is made, whereby they agreed to sell to the deft a certain tract of land for which deft was to pay so much mony, for which the suit is brought. pleas covts performed & non est factum. The instrument offered in evidence was objected to because variant from that declared on, the former having only the signatures & seals of "H. Darst & Co" and of the deft—whereas the declaration states that the agreement was under the respective hands & seals of the plfs. (the three persons) and the deft— The plf. when he offered the instrument in evidence stated that he was prepared to prove that it was signed & sealed by H. Darst with the consent & approbation of his Copartners & Cotenants the two other plfs.— Decided that even if the declaration had stated that the deed was executed by the three plfs. it was by no means to be admitted that the allegations would not correspond with the fact, because the execution of a deed by one partner, in the partnership name, with the consent of the other partners makes it in the eye of the law the deed of each of them, altho there be but one Seal. C. Lit. 35. 230 b.— Perk Conv. 130. Sir Wm Jones rep. 268 Lora Lovelaces Case—4 D & E. 313. 9 Johns. 285. 19 John. 513. But the Declaration, properly construed, alleges merely that the plfs. by the name of H. Darst & Co. and the deft respectively sealed— that is, H. Dart & Co.—and the deft.

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(9) Ward vs. Sebring—Bill praying a discovery in relation to land for which an ejectment by the deft in equity agt the plf. is depending in this court—motion by plf. that service of subpena on the defts attorney in the ejectment may be considered good service, his Client residing out of the State. motion overruled. This order is never made but in the two cases of injunction bills to stay proceedings at law, and in Cross bills. In those cases, the court is not prevented from making the order by the 11th Sect of the Judiciary act of [17]89, because, strictly speaking they are not original suits² Coop. Eq. p. 44. 2 Ma<mutilated> 198—1 Har. C.P. 207.

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10th. Susquehanna bridge Co. vs. Evans—Rule to show cause why the plea to the Jurisd. should not be struck out, the same having been filed after an imparlance. The Court decided that this is no reason for granting the motion, because tho, generally speaking, such a plea cant be put in an Engl<mutilated> after imparlance, the reason is inapplicable to the federal Courts, where the practice has been long established to allow the deft to object to the Jurisd. at any stage of the cause prior to the trial, and even to make the objection at the trial on the general issue. 1 Ben. 142. 6 do 88. 2 Dal. 368— 4 do 337. But the Court made the rule absolute for another cause, viz that the plea was filed long after the cause was at issue on the general plea, without leave of the Court, & that, if leave had been applied for it would have been refused, & that for the following reasons—1. the incongruity of the Judgments forbidding the double pleas; <mutilated> to the Jurisd. being respondeat ouster & the other, that the plf. recover. 2d It is calculated to produce delay—3d It is unnecessary, since Defect of Jurisd. may be given in evidence on the general issue.

This cause coming on to be tried on the general issue, 2 questions arose—1 whether evidence to prove that, when the note on which this action is brought, (made by J.S. and endorsed to the plfs. by the deft) was discounted, the plfs agreed that if, when it should come to maturity, the plfs should be indebted in a larger sum if J.S. they would debit J.S. with it & not look to the deft the deft offering to prove that when the note became due, the plfs were indebted in a much larger sum to J.S. The Court decided that this parol evidence to control the implied assumpsit of deft as endorser might be given. 2d the President & directors of this Company (an incorporated one) being all Citizens of Maryland, but some of the Stockholders being Citizens of the same state with the deft, whether this Court has Jurisd. of the Cause? The Court intimated the Counsel their opinion that we had not, & that upon the authority of Devaux is the Bank of the U.S. which Sergeant in his Constitutional law seems entirely to have misapprehended. Serga. 113.

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(11th) Riston vs. Content. Action for goods sold in Baltimore by plf., a merchant residing there to deft a merchant of Phila. who gave his note for an amount, dated Philada.— The deft having been since discharged under the insolvent law of Pennsylva., the question was whether the Judgt should be general, or only de bonis. Per Cur. The debt having been contracted in Maryland & not made payable here, the court cannot notice the discharge under the insolvent law of this state. The dating the note³ in Phila. is no evidence that the parties agreed that the debt should be paid here— A general Judgt must be entered.

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12th Westcot vs Bradford—This is the case mentioned in my letter to you from Phila. and I was much pleased to find that your opinion, so far as I had disclosed the Case in my letter, corresponded with that which I had prepared before I wrote to you, my mind clearly inclining to the opinion that I could dismiss the appeal in part. As to the two Cases from Gall. I had no doubt but that they would turn out as you have stated; but in that case, altho I considered them to be incontrovertibly correct, they failed me as authority for the opinion I inclined to give, viz that from the decision of the District Court distributing the fund an appeal would lie to the C. Court, which the Counsel for the appellee denied.

There were some other points decided in that case which I will now state— The petitioner gave information in writing agt⁴ 7 Hogshds of rum on board the T. The Collector found 13 Hogshds in the hold which he seized as also the sloop T. and another sloop which had imported the rum, but why he was led to do so, viz search the latter sloop did not appear. 1. I decided that the information as to the rum on board the T. was in fact an information as⁵ to the T. tho it was not expressly given as to her, since if the rum was liable to forfeiture she was of course. But that the same inference did not apply to the other sloop. 2d That the declarations of the deputy Collector made after the seizure was completed, that the petitioner was the informer as to the other sloop, was not evidence in this suit against the collector— it was no part of the res gestæ. 3 As the fund in Court constituted the sole Jurisd. of the D. Court, and the sum reserved by a previous order of the Court for the informer not being sufficient to satisfy his proportion of the forfeiture, that court erred in making a decree in personam agt the Collector (to whom the rest of the fund had been paid over) to supply the deficiency. 4th That the informer, to whom, after the seizure, the care of the Sloop & rum was committed by the Collector, did not forfeit his right to a share of the proceeds⁶ by his misconduct in endeavouring to destroy the rum with a view to prevent the forfeiture from being enforced. His character of informer & that of bailee, or agent of the Collector, were entirely distinct.

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13th Bosbyshall vs. Oppenheimer et al. The deft B. not having Justified bail the plf. recd an assignt of the Bail bond from the Marshal, on which suit was brought, to which the defts plead comp. ad dien & the plf. a prout patet per record. to which plf. replied nulle tiel record, & the parties being at issue, the Court gave Judgt for the plf for the penalty of the bond at a former Court. upon the affidavit of the deft O. that the debt due to the plf. was much less than he claimed, the Court, perceiving that the dispute was of that nature as to require the intervention of a Jury, directed a special writ to be framed to be directed to the marshal to impanel a Jury to inquire what sum was due to the plf. in the original suit. The marshal having returned the inquest in finding a certain sum to be due, the defts obtained a rule to show cause why the inquest should not be quashed, as having improvidently issued, & why the suit should not be dismissed for want of Jurisdiction, the plf. & defts all being Citizens of the state of Pennsylva.— It was admitted that the servatees in the bail bond & the plf. were Citizens of that state, but whether B. was or not, depended upon very contradictory testimony. It was contended that as the marshal could not have sued the bail bond he could not under the 11th Sect. of the Judiciary law give Jurisd. to the Court by assigning the bond even to a Citizen of another tate, had he been the plf.

Decided 1. That altho a writ of inquiry in its ordinary form never issues but in cases where a Judgt has been rendered, yet this Court possesses the power to direct in what manner its conscience shall be informed in a case like the present of the sum due to the plff, either by ordering⁷ a writ to be directed to the marshal to inquire of the same by a Jury, or by directing an issue to be made up & tried at the bar, or by summoning a Jury to enquire of damages as is the practice in Virga— That the Court has the power to establish its own practice by pursuing either mode. The Pennsylva. practice which is to allow the plf. to take his executor for whatever sum he pleases & to relieve the deft afterwards on motion was never adopted by this Court. 2. That altho the Courts of the U.S. have been in the habit of inquiring into the question of Jurisd. on motion, at any time prior to the Judgt or of permitting the deft to question it on the general issue, they never have been known to listen to the objection after verdict, or Judgt nor could such a practice be tolerated. If the deft questions the Jurisd. at the trial & the Jury find agt him, or if he goes to trial on other matters & does not question it, he is estopped by the verdict to deny the allegation of Citizenship averred in the declaration. 3d. The suit on the bail bond is a mere incident to the original suit, & it is therefore no objection to Jurisd. that the marshal who assigns it, or the plf., and the obligors, are Citizen of the same state, of the court had Jurisd. in the original suit. The 11th Sect. of the Judiciary Law is inapplicable to such a Case— The design of that Sect. was to prevent assignments being made of <illegible> in action for the purpose of giving Jurisd. to the fedl Courts.

I am now done my dear Sir, and I doubt not that you are heartily glad of it. There were some other cases decided which cost me no little thought— but the law points which arose in them are so mixed with facts that they would hardly bear abridging.

I sincerely thank you for the 2d vol. of Mason which I recd in Phila. and which I read nearly through on the road with my infinite satisfaction & approbation of the decisions. & I trust with some advantage to myself.

I expect to be very busy during the two ensuing months having to examine some difficult Cases argued at the last Court & taken under advisement, in addition to the insolvent & stop law Cases from the Sup. Crt.

God bless you my dear Sir, with uninterrupted health long life, and as great a share of happiness as a mortal has a right to expect. Believe me to be truly yr friend & affect. Servt