I returned home from my Circuit on the last day of Novr, since which, I have, as far as the various calls to which a farmer is exposed, have afforded me time for Study, been employed in preparing an opinion in the equity case of Conn. vs. Penn. the argument of which consumed nearly a fortnight of our last Term. I hope to make a final decree in this case in April, and never again to be plagued with it, unless an appeal should be taken.

The Session of the Phila. Crt lasted about five and a half weeks, but, what with two attacks of Sickness which confined me to my room each time, and the long arguments in the above case, and that of the pirates, I never did so little towards clearing the docket in the same length of time. I will endeavour to make you as intelligible a report as I can (in consequence of my note book having been left in Phila.) of what was done.

1. U.S. vs. Delaware Insurance Co.— This was an action for mony had & recd &c. One Watkins, in May 1[8]22,¹ borrowed of the defts, on respondentia, $10,000 upon the Specie & goods laden, or to be laden, on board the A. on a voyage from Phila. to Canton, & at & from Canton to Phila., at a prem[ium] of 14 Pr Ct— a memo. was endorsed on the respond. Bond, signed by W. reaching an agreement, that the bills of Lading for the Specie, goods &c. mentioned in the bond, shall be endorsed to the defts as a collateral security for the loan, and also, that the property to be shipped homeward, being the proceeds of the sum loaned, shall be for the account and risk of sd W. but to be consigned, as Collateral Security afsd, by invoices & bills of lading to the defts— It is then declared "that such endorsement or Consignment shall not exonerate the person of the borrower, nor compel the defts to accept the specie and goods which may arrive in discharge of the debt, but that the defts may recieve & hold the same for 60 days after their arrival in Phila., & if the bond shall not be discharged within sd 60 days, the defts may dispose of the goods at public Auction, and charge sd W. with any balance that might remain due.["] The bill of Lading for the $10000 borrowed & shipt at Phila. was accordingly endorsed as follows "I do assign the within bill of L., & sum of mony mentioned in it, & also the goods to be invested therewith at Canton, & shipped in return for the same, to the D. I. Co., as a Collateral Security, according to the Memo. on the respondentia bond." The bill of Lading given at Canton on the 23d Decr 1822, and the goods mentioned in it, were stated to be shipped for acct & risk of W. and consigned to the defts, & the invoice was also enclosed to them. The vessel returned to Phila. 24 Apr. 1823, & on the 26th June, the defts stated an acct with W. making him debtor a small Sum after crediting him with the goods. 9th of June 1823 W. executed an assignment of all his property to a trustee, for the payment of certain duty bonds due to the U.S. (for which this Action is brought) & the balance to pay his other Creditors[.] The Schedule accompanying this deed mentions the Canton goods in the hands of the defts by virtue of a Consignment to them. Charge— The question is, whether the preference of the U.S. will overreach the claim of the defts to these goods? The Cases of Thelusson vs. Smith 2 Wheat. & other Cases in the Supreme Crt have decided, that this preference is to be satisfied out of the Effects of the insolvent, & therefore, if, before the right of preference accrues, the debtor has made a bona fide conveyance of certain property or has mortgaged it, or it has been seized under Execution, or he has given it in pledge to secure a debt, the property is divested out of the debtor, & cant be made liable for debts to the U.S.— The Canton goods in this Case were vested in the defts, because, the endorsement of a bill of lading, or the filling it up to a third person, transfers the legal interest in it, provided it be for value 2 Holt. 74—² this is the case, if it be filled to a creditor as a security for a debt. Hibbert vs. Carter is a very strong Case,³ & precisely suits the present. The objection to the application of this doctrine to the present Case, that actual possession of the Cargo, not having been taken by the defts, prevented the vesting of the property in the defts, has no weight— The possession of the master was the possession of the defts. The right of possession follows the right of property. another objection that the goods were at the risk & for the Acct of W. is fully answered by Haillee vs. Smith 1 Bos. & Pul. 563— The verdict must be for the defts— verdict accordingly.

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Richardson vs. McIntyre—Rule to show Cause why an exoneration shd not be entered on the bail price, the deft having been discharged under the insolvent law of this state. The debt for which the suit is brought is for the sales of goods sent by the plfs., Merchants of Massachussetts, to the deft, a mercht of Phila. to sell on Commission, and for the amt of which, the deft gave his note in Phila.—opinion— The debt was contracted in this State. according to the Uniform practice of the Court, we discharge on Common bail in Cases of debts contracted here, where the deft has been discharged under the insolvent law of this State, or direct exoneration to be entered, where special bail has been given, on the ground, that the person of the deft being discharged by a law of the State, the Courts of the U.S., sitting here, are bound to give them the benefit of the law.

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Ward vs. Seabry—motion,⁴ by the deft in an ejectment; & Injunction bill to stay waste, that Service of the subpena in a bill of discovery filed by him in relation to the same land, on the plfs. attorney & solicitor in the above cases should be considered good service, the plf. residing in New York. motion denied, the Court having always refused it, except in cases of Injunctions to stay proceedings at law, and in Cross causes in equity. This is also the practice of the English Chancery. Newl. Ch. 65. 2 Mad. 327—4 Bro. C.C. 478.

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U.S. vs. Fairclough—debt for $500, the penalty given by the 57 S. of the duty law, agt the master; for disagreement between his manifest & Cargo. The disagreement consisted in surplus Cargo discovered on Board, not entered in the manifest— The question was, whether it was incumbent on deft to satisfy the Collector or Court, not only that no part of the goods had been unshipped &c. since they were taken on board, except as had been specified in the report &c. & pursuant to permits, but also, that the disagreement was by mistake or accident. opinion— The Case of surplus Cargo, is a Case of disagreement, and the deft must satisfy the Court of both facts to avoid the penalty, or, being construed and, in conformity with the 24th S. which, tho confined to the masters of American Vessels, is in pari materia with the 57th— want of room prevents my stating other reasons which weighed with us.

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U.S. vs. Whites & Johnson— Debt on a bond by defts to the U.S. in the penalty of $5000, with Condition that W. White (who, the Condition states had been appointed by the Secretary of the Navy agent for paying invalid pensioners belonging to Pennsylv:) shall faithfully execute agency. This suit is agt the sureties, the Principal having become insolvent, & been discharged. At the return of the writ, the D. Attorney entered Judgt for the penalty, and issued a fi[eri] fa[cias] upon which he endorsed that $3000 were to be levied, which sum, appeared by the accts settled at the Treasury department, to be due by W. White, as agent for the navy pension & privateer pension funds. The questions decided by the Court were raised upon a rule to show cause why the above proceedings should not be set aside. opinion— 1. The issuing an execution upon a Judgt for the penalty of a bond, to which there is a defeasance containing a Collateral Condition, without first issuing a writ of enquiry, or impanelling a Jury, to assess the damages due, is said to be the practice of the Courts of this State, but is obviously unjust, and is contrary to the principle of the 26 S. of the Judiciary law, & is therefore not to be sanctioned on the Courts of the U.S. 2. The defts were bound only for the faithful conduct of their principal in the administration of the invalid pension fund, on which nothing is due— The other two funds are totally distinct in their objects, organization, & execution, & they are not bound for the unfaithful conduct of W. White in relation to them, by the terms of the Condition of the bond, nor can Sureties be ever bound beyond the plain Scope of their agreement—Judgt for defts.

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U.S. vs. Haskell & Francois—Indictment for making a revolt— The Judge in his charge to the Jury defined this offence in the way stated in the case of the U.S. vs. Smith 1 Mas. 147, observing, at the same time, that our object was to carry the Case before the Sup. Crt, in order to obtain a definition of it there, or to obtain an explanatory law, in Case the prisoners should be convicted. It was stated to the Jury that, if they were satisfied that Smith, who had killed the Mate, severely wounded the Captain, & forced him below, assumed the entire command of the vessel, and was obeyed by the Prisoners as such Commander, in opposition to the orders of the Captain not to regard Smith, but to obey his (the Captains) orders, & that they refused to do so, the offence was made out, altho the prisoners never laid their hands on the master. That as to the excuse urged in favor of the prisoners by their Counsel, that they were influenced by fear in obeying the Usurper, & disobeying the Captain, it cant avail them, unless the Jury are satisfied that "it was a fear of death—such a fear as a man of ordinary fortitude & courage might prudently yield to." and that these men, under all the Circumstances of the Case, had a well grounded cause for such fear in Case they had refused to obey Smith.

After the Jury had been out, they returned into Court, and the foreman pronounced a Verdict of guilty. Upon a poll being demanded, one of the Jurymen gave the fullest proof, by his Conduct, of insanity, which was corroborated by many of his companions. The Court enquired of the Prisoners Counsel if they consented to discharge the Jury— They refused. We then ordered them to be discharged, directing a record to be made of the reasons—viz. that the Jury could not agree, and that the Court were satisfied upon view, & upon other evidence, of the insanity of one of the Jurors.

When another Jury was called, the prisoners Counsel tendered a long special plea stating, in Substance, the discharge of the former Jury, on the ground that they could not agree, (omitting the other reason) and insisting that this was equivalent to an acquittal. The D. Attorney demurred generally, and the Court, after a full examination of all the Cases, overruled the plea, on the ground, that its tendency was to put in issue before a Jury the question whether the Court had exercised its discretion in dismissing the former Jury, in a sound & legal manner. That the plea having stated, as one of the reasons, that which would not warrant the discharge, & omitted to state the one which would, the D. Attorney must either have replied, and so involve the case in the absurdity above noticed, or adopt the mode he had selected, of demurring. The Subject was examined much at large, and is so interesting, that I doubt not you will like to see the opinion in extenso.

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Glenn vs. Humphreys—decided 1. that the insolvent law of Maryland, so far as it discharges the person, is constitutional, and so far as it discharges the debt, it is invalid. 2d That the deft having been duly discharged under it, and the debt on which this action is founded, having been contracted there, the Court wd allow the deft to appear on Common bail, if the debt were due to plf. But 3dly as it is due to the U.S. and the suit is brought in the name of the plf., the District Attorney, to whom the note was given for the use of the U.S. it is not affected by State insolvent Laws—U.S. vs. Wilson 8 Wheat. [253.]

I have barely left myself room to assure you of my unaltered friendship & Affection— Adieu