There were so few cases of importance decided at my spring circuit, that I thought it would be best to wait for the fall Sessions, and to give you the whole in one letter. This task it is now my intention to perform. Some of the points decided are involved in much difficulty, upon which I shall be much pleased to see your observations.

1. Chew vs. Egbert.¹ Covt on a sealed instrument by which plf. covenanted to sell a tract of land to deft for a certain sum to be paid on a certain day (with a covt by deft then to pay it) on which day the plf covenanted to convey and deliver possession, "the payment being then made, it being understood that no transfer of title or possess. is to take place unless the mony be in hand paid."

The declaration averred that on the day, the plf. was ready and willing & offered to deliver possess., and a deed conveying the property on his paying and performing as by the agreement he was bound. On this averment the parties were at issue, but it was unsupported by the proof given by plf.— on motion for a nonsuit it was decided 1st that the acts to be done by the parties being to be performed on the same day, the covenants were mutual and independent, & that either party suing on the agreement must in such a case aver & prove performance, or an offer to perform. The averment in this case therefore is material & ought to be proved. 2d But if it were immaterial still the issue being formed upon it , it ought to be proved. The plf. suffered a nonsuit. 1 Sand. 320. N.4. 11 Johns. 525 & many others were cited on the 1st point.

When I came to extend the above opinion in my note book, I became satisfied that the 1st point was incorrectly decided. The rule, that where the acts are to be done at the same time they are mutual, & performance must be averred and proved, or excused, Doug. 690 cannot (I now think) apply to a case, where, by an express provision in the agreement, (as was this case) the deft was to do the first act viz to pay the purchase mony, for then the acts, tho to be performed on the same day, are nevertheless not to be simultaneously performed. What is your opinion on this point? I see no objection to the opinion on the 2d point; do you?

(2) Livingston vs. Smith.¹ Repleven for a steam boat which had been attached by process from a state court in N. Jersey for a debt claimed to be due by this plf. to the plf. in atta. The case was extremely complicated by the pleadings, and would require too much of my paper to detail. The fact admitted by the demurrer was, that, after the property was attached, the plf. gave his notes of hand to the creditor for the amount of his claim, which was accepted as payment, when they shd be paid, which was not till after bringing the present suit. Decided 1st that the deft in the suit in which his property is attached or taken in execution, cannot maintain repleven against the officer, altho he had previously satisfied the debt for which the first suit was brought. 5 Massa. rep. Isley vs. Stubbs 15 Johns. 401—14 do 84. 20 do 466 and the cases cited in those cases. But independent of this objection this suit cant be maintained, since the debt sued for under the attachment not having been paid till after this suit was brought, it cant be said that even the detention was then tortious.

2. The attachment agt an absconding debtor is, by the law of N. Jersey, a proceeding in rem. & the property attached is in the custody of the Court from whence it issues. if therefore, the property of a stranger be seized under the atta. he cannot support replevin against the seizing officer. His remedy is trover, trespass, or having a Jury summond to try the right of property and a provision of the atta. law of that state.

(3) Norton vs. Beach. Decided that a party to a sealed instrument is not estopped in Pennsylvania to deny that he had received the consideration stated in it to have been paid 3 S. & R. 355. 564. 7 S. & R. 309. The same principle prevails in N. York & Massachussets—14 Johns. 210. 20th Johns. 338. 15 Massa. 144. My decision conformed to the settled law of the state where I sat.

(4) Massie vs. Craig in equity. Decided, that the plf. cannot under the general prayer for relief in his bill, unless in a few excepted cases, ask at the bar for relief different from, or inconsistent with, the case made by the bill. and the special relief prayed for and founded thereon, more especially if the deft would thereby be surprised and prejudiced, altho, if the particular relief cannot be granted, precisely as prayed, the court may assist the particular prayer under the general one, if it can be done consistently, with the principle above stated — 2 Mad. C. P. 138-9. Coop. C.P. 14.

(5) Treadwell & Watson vs. Bladen,³ action for violation of a patent to Treadwell. Watson claimed under an assignment by T. of his patent right⁴ to be enjoyed and used within certain local limits specially designated. The questions upon a motion in arrest were, whether such an assignment can be made? And whether the patentee & assignee can Join in the action? Decided that such an assignment cannot be made according to the case of Tyler vs. Tuel 6 Cra. And that these parties cant Join in the action. If the asst operates to divest the patentee of his interest under the patent within the prescribed limits he has no cause of complaint on account of an infringement within those limits, & therefore has no cause of action. If the Asst did not so divest him, but the asst operated as a biens to the assignee, or a covt that he might use & enjoy the right within those limits then the assignee had not such a legal title that he could Join in the action but he should have brought it in the name of the patentee. The Case of Whittimore & Cutter 1 Gall. the decision in which had my cordial assent, is altogether unlike this, as in that, the asst was not of a mere right to enjoy & exercise the privilege within a particular district, but it was an asst of a certain part of or interest in the entire patent, the effect of which was to make the assignee owner of an undivided moiety of the whole right as tenant in common with the patentee, in which case they not only might, but ought, to join in the action. Judgt arrested.

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(6) U.S. vs. Hainey. Indictment for aiding in making, forging, and counterfeiting notes purporting to be notes of the Bank of the U.S.— The evidence was that the prisoner, after the notes were printed, filled up, signed & completed, assisted in steeping them in Coffee to color them, & then drying and crumpling them in order to give them an old appearance to correspond with their dates. I put it as a question for consideration, in case of a motion for a new trial, should the prisoner be convicted, whether upon the above evidence, she could be said in any legal sense, to have aided in making forging & counterfeiting the notes? The prisoner being acquitted, the point was not discussed; but my opinion was, & is, that the charge was not supported by the evidence.

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7th U.S. vs. Kendricks—Ind. for having in his possess. paper adapted to making bank notes & similar to that on which the notes of the bank of the U.S. are printed. The only witness to prove the fact was an accomplice. I stated to the Jury that an accomplice, if he appear before the court free from all exception, other than that of being an accomplice, is not only a competent but a credible witness, and ought to be believed, altho his evidence should stand alone,⁵ uncorroborated by another witness, or by circumstances. A contrary doctrine, tho held by many Judges, seems to be a legal solecism. See 2 Stark. Evid. 24. 2 Camp. 133— 2 Stark. Ev. C. 34 Rex vs. Dawber—1 Chat. C.L. 494—Rex vs. Jones referred to by Ld Ellenborough in 2. Camp. Ruled that a witness is not bound to answer a question, whether he had ever confessed himself to have been a principal in forging notes in the Bank of the U.S.

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(8th) Lannings Lessee vs. Vaughn–On a motion to dismiss a sci. fa. to revive a Judgment, on the ground that the Jurisdiction of the Court was not laid in the declaration of the original suit, the Court decided, that, as nothing can be pleaded to a sci. fa. to have execution which might have been pleaded in the original action, this motion cant be sustained.⁶ The original Judgt, till revoked, is to be considered as a legal & valid one. 5 Cra. 185. 6 do 267— If the Court had Jurisdiction on the original suit, the want of it when the sci. fa. is said out, (as if the plf. remove to the same state of which deft is a Citizen) cannot be pleaded to the sci. fa. 2 Wheat 290-7.

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(9) Vanness vs. Bayard. The Court decided, that, altho the U.S. are not suable in an original action, still if they obtain a Judgt at law, they may be injoined, such an injunction not being an original suit, or any thing more than a defense in equity to the suit at law. Coop. Eq. 44-45. 2 Mad. C.P. 198.

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10–Herbert vs. Haight—Dower bill in equity. The plf. widow of J. Herbert Joined him in a mortgage of his land to deft and acknowledged the deed upon a privy examination. The deft entered up Judgt upon a bond & w[ri]t of attorney given as additional security agt the husband, & had the execution levied on the mortgaged land, which was sold under it & purchased by deft to whom, the sheriff conveyed it. The mortgage debt remained unpaid. The Husband died, & the bill prays an asst of dower. Decided that 'till the death of the husband, the right of dower of the wife has no legal existence, but is entirely contingent during the life of the husband, depending upon her surviving him. Of this contingent right she bar'd & divested herself by Joining in the mortgage deed, and acknowledging it under a privy examination, and unless⁷ the husband, by paying off the mortgage, acquires a new Seison her rights to dower can never revive. The wife cannot be considered, qupad her right of dower, as a surety for her husband, by Joining in the deed. and her right of dower as a subsisting encumbrance which the purchaser of the equity of redemption under the execution is bound to satisfy. Bill dismissed.

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11th. Howell vs. Elmore district atty. If the U.S. by their officers give credit to the principal in a duty bond beyond the time stated in the bond, by a contract with him for valuable consideration without the consent of the surety, equity will relieve by decreeing a perpetual injunction, in like manner as if the Creditor were a private person.

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12. U.S. vs. Kirk. Ind. for seeing out a warrant of one of the Aldermen whereby the person of Mr Salmon, Secretary of legation of Spain might be arrested &c. contrary &c.— The evidence was that Mr Salmon having very improperly beaten the defts child, the deft complained of it to the Alderman and asked for redress. The Alderman placed in the hands of a constable a warrant to arrest Mr Salmon. The officer waited on Mr S. and informed him of his business & requested him to accompany him to the A.— Mr S. then informed the officer of his publick character, on which the officer begged pardon & withdrew without serving the warrant. After examining with care the 25th & 26th Sect of the first crimes act, which are very obscurely worded, I decided that the mere seeing out process without further proceedings, but which is withdrawn as soon as the character of the minister is made known to the officers, not an offence agt the law of nations or the above act of Congress.

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13. Lessee of Lanning vs. Stevens, and 3 others—  Eject for 300 acres of land, In consequence of a previous decision of this Court that to give Jurisd. the value of the land must be stated in the declaration, it was alleged in this to exceed, besides costs the sum of $500. Pleas, the general issue, and that the matter in dispute did not exceed $500 besides Costs. The evidence on the trial was that the 300 acres were worth more than $2000, but that the parts in the possession of these defts respectively were worth less than $500. The Court decided that the 300 acres is the matter in dispute, and that if they exceed in value $500 besides costs, the Court has Jurisdiction whatever may be the value of the several parts in possession of the defts respectively— Green, vs. Liter 8 Cra. 242. The deft set up the right of dower of the widow of the person under whom the plf. claim as an outstanding title as to 1/3d of the land in dispute. Per Cur. Dower, before it is assigned, can't be set up as an outstanding title agt the plf., since the whole of the land whereof her husband was seized descends upon his death to the heir, and the widow has no right nor can she enter, before assigt of dower 2 Vern. 403. 1 Creuse 159. 166. 5 S. & R. 536 10th do. 328—13th do 94—Decided also, that altho a Judgt of this Court upon a sev. fa. to foreclose a mortg. according to the law & practice of this state may be erno noons. this Court having chancery Juris. still, until such Judgt is reversed, a purchaser of the mortgaged land under an execution founded on such Judgt has a valid title. The Jury found for the plf, but on motion, the Judgt was arrested, the declaration stating the nominal plf. to be a Citizen of another state, instead of the lessor, the real plf., whose Citizenship is not stated. Brown vs. Strode 5 Cra.

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The great tea cause between Nicoll & Conard is ended,⁸ after a trial of 17 Juredical days, verd. for plf. Were I to give you a sillabus of the many interesting questions decided in this cause, it would nearly fill a sheet of paper. As soon as I get home I shall draw out the charge, & the points of evidence ruled, from my notes, and will carry my note book to Washington for your perusal, if you have time & wish it.

I have the following case under advisement, and if you can assist me as to one point in it you will greatly oblige me. A. by deed conveyed to his son B. a tract of land "habendum to him and the heirs of his body lawfully begotten or to be begotten, and in default of such issue, then to the surviving sons & daughters of the grantor in the proportions of two shares to a son and to a daughter one share, and to the heirs of their bodies lawfully begotten respectively, and in case any or either of said sons or daughters shall die without legal issue then their share or shares, proportion or proportions to go to the survivors and their heirs in the manner shares & proportions afsd and in default of issue in them the sd surviving sons and daughters of the grantor then to his right heirs forever" The grantor had at the time 3 other sons, & 3 daughters, all living, as well as the grantee, at his death, but at the death of B. the grantee, without issue, they had all died leaving issue except one daughter, the deft, who claimed the whole in opposition to the issue of her decd brothers and sisters. I have no doubt but that the remainder to the surviving sons & daughters of the grantor was contingent and on the death of B. would vest in such of the sons & daughters of A. as should be then living. The difficulty with me is, whether one daughter only surv[iv]ing, answers the description in the remainder clause so as to vest the whole in her. This point was not argued at all. I asked the defts counsel if he could refer to any cases. He answered he could not, but that there could be no doubt that one sufficiently answered the description. I have doubts myself, and yet I can assign no satisfactory reason for it. Be so good, my friend, to look into the cases and help me out of the difficulty if you can.

Intending to leave this tomorrow & having many preparations to make, I have necessarily written in great haste. I am delighted with my new associate on the bench and entirely thankful to Mr Adams for him. I lament the loss of the services of this Statesman for my country's sake, but it is inevitable. & I submit as well as I can.

God bless you my dear Story. Let me hear soon from you, & believe me to be most truly yr. affect. friend