I have at length returned home, after an absence of between 4 & 5 months, and I employ the first moments of leisure in reporting to you & brother Story the most interesting cases which came before me for Judgt during my late circuit. I shall say nothing of the Atlantic ins. Co. of N. Y. and the U. S.² which employed us very closely for 9 days, as the case will go to the Supreme Court. The following cases are somewhat new, & most of them interesting.

(1) Wisner &c. vs. Ogden admtr. vs. Elizabeth Barnet et al. Oliver Barnet the husband of Eliz. Barnet, made his last will, and 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 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, and reinvested them in other securities in her own name, and died. Ogden was appointed her admtr. pending 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 by some of the next of kin of testator, to recover the debts so collected, as undisposed of, one of the plfs. being the brother of the testator, and the others, as well as the rest of the defendants, being the children of a sister who died after the testator. The admtr of E. B. claimed the whole of the outstanding debts as belonging to her 1. As residuary devisee under the above clause—or 2dly as executrix—or 3dly as a trustee by implication upon a trust which, the omission of the testator to name the Cest. q. T.³ prevented her from executing, and therefore the property was not undisposed of, but remained vested in her discharged of the trust. Harding vs. Glyn 1 Atk. 469. Martin vs. Douch 1 Ch. Cas. 198.

I decided 1. that E. B. could not take as devisee, 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, is wholly unlike the present in these particulars. 1st. In that, the exception had nothing to operate upon, the £30,000 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." 2d. 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; but in this case, the exception is of specific property. These distinctions are relied on by Ld Hardw. in marking the difference between that case & Davers vs. Dewes 3 P. W. 40, which is precisely like the present, and must govern it. See also 1 Vez. Jr 396.

2. She is not entitled as executrix, upon the principles stated by Fonb. 2 vol. 131. note 11 and 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 3 persons to be named, which the law did not vest in her as executrix. In that character, it was her duty to collect the debts, and to dispose of them as she was directed. She had no discretion in selecting the objects of testators bounty, or in making the distribution amongst them. Had the 3 persons been named, she must have divided the debts amongst them equally. 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 above clause is synonimous with pay, deliver over &c. and vests no discretion in the Exectr. Bac. ab. tit. Legacy, letter B.

This suit being brought more than 6 years after testators death, 2 questions arose—1. whether the remedy was barred by the act of limitations? 2dly whether it could be taken advantage of upon special demurrer to the bill, that alleging no facts to bring the case within any one of the savings? 1. Decided that the 1st question depended on another—whether by the law of the state, the Courts of law have a concurrent Jurisd. with the others in affording a remedy to legatees & distributees? If they have, the Stat. of limita. is a bar, otherwise not. The doctrine seems to be correctly stated in Kane vs. Bloodgood 7 Johns. C. C. 90 & Decouch vs. Savatier 3 Johns. C. C. 190. upon a view of the N. Jersey Act explained by Griffith 4th Law reg. 1192. 3 I was inclined to the opinion that they had not such Jurisd. & therefore that the Act of limita. was no bar, but I left the point open for argument at the hearing on the answer.

2d. In cases where the bill shows that the act of limitations does apply, and is not within any saving, the deft may avail himself of it by special demurrer. Jenner vs. Tracey 3 P. W. 287. 2 Mad. C. p. 240. Mitf. 213. 1 Vern. 418. Foster vs. Hodgson 19 Vez. 182 Delorain vs. Brown. 3 Brow. 646. 2 Vez. Jr 83. 4 Brow. C. C. 254. The only case contra[r]y Aggas vs. Pickwell 3 Atk. 225. If the plf. would force the deft to rely on the limitations by plea or answer, he must alledge in the bill the facts necessary to repel the bar.

The third head of objection to plfs. recovery was 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 Exectr or admtr. with the will annexed a party defendant. But as the bill charges that his Exectx collected the debts and invested them in her own name, in other securities, the next of kin may follow them into the hands of her representative, and demand of him an account & distribution without making the legal representative of O. B. a party.

2. The Children of the Sister of the testator who, (the Sister) died after him, are not the proper parties, the interest of that Sister belonging to her legal representative, for the purpose of using it in a due Course of administration, & therefore her executor or admtr. is an essential party to the suit as to that interest at least.

3. If there be persons who ought to be made parties and they refuse to unite in the Suit, or cannot be made parties plfs., from an objection to the Jurisd. they may be made parties defendants.

Lastly it was decided, that 'tho the next of kin cannot claim technically as distributees, where there is a will, still equity considers the exectr as a trustee for them, and the Court will adopt the rule of the Stat. of distributions in the disposition of the property undisposed of 3 P. W. 40 Davers vs. Dewes.

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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 and without Justifiable Cause. Charge—1st The Jury must be satisfied that the intention with which the assault was made was to take the life of the person. Tho the intention was to inflict the most cruel torture short of death, it would not be sufficient. 2d. Moral force may support this Count, as if the Officer or mariner leave the ship under a well founded apprehension that the master intended to take his life.

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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 wordly goods, as follows—["]I give to my wife M. D. all & singular my goods & effects both real & personal, of what kind soever or wheresoever, after my debts & fune[r]al expenses are paid." The only other clause in the will is that in which he appoints his wife & J. S. his executors. The question was, whether the wife took a fee simple in the testators real estate? Decided 1. That her estate was not enlarged by the charge for debts & funeral expenses. The rule 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 & 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 an estate for life. But if 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. Mellor "to M. D. after my debts are paid."

2. But M. D. did take an estate in fee by force of the expressions effects real & personal which ever since the case of Hogan vs. Jackson Cowp. 229 have a technical character, and import a fee unless their meaning be restrained by some other expressions, or unless a contrary intention appear, from other parts of the will. See also Wright vs. Den 10 Wheat. supra, as to what is said of the above case, & the import of the introductory clause, & the words "rest & residue &c."

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(4) Clark et al. vs. Brig Dodge Healy & Cargo— C. Cts— For the facts & the opinion at large in this Case, I must refer you to one of Walsh's papers the latter end of April or early part of this month. It was a claim for Salvage, & the material points decided were 1st. That to entitle the libellants to the character of Salvors, they should prove that the property was saved by their exertions. That taking possession of the vessel by the libellants agt the will of the Commander of her, however imminent her danger, but who, if she could be saved by human means was competent to do so by those within his command, is a tortuous 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 as true, unless they are proved.

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(5) Blount vs. Darrach. Bill by the ward, after arriving at age, agt the executors of her first guardian, for an account, charging & specifying certain errors in the account of her guardianship which had been settled & confirmed by the orphans Court, & the balance so decreed paid to the ward. Deft pleads the sd decree of the orphans Court which remains unappealed from & in full force in bar of this suit. The plea states that after the death of defts testator, they filed a full account of his guard[ianshi]p in the O. Court which was referred to Auditors, before whom the subsequent guardian of the plf. appeared, contested the account, & succeeded in encreasing the balance reported to be due to the ward, which report being referred to that Court, was by a decree thereof allowed & confirmed. Decided 1. That the decree of the O. C. was that of a Court of competent Jurisd. directly upon the matter sought to be litigated in this suit, and between the same parties, & is therefore conclusive 'till reversed by a Court of superior Jurisd. and is a bar to this suit. 2d. Tho the plf. was entitled to have a day given him to show Cause agt the decree after he came of age, still the omission to give him such day is but an error, not examinable in or remediable by another Court of Concurrent Jurisdiction. plea allowed.

(6) Post master genl vs. Reeder. Debt agt the surety in a postmaster's bond dated in 1804. To 5 of the pleas, demurrers were filed, which presented these questions 1st whether the bond was valid, it being insisted that the P. M. G. had no authority to take it? 2dly whether the omission of the P. M. G. to cause suits to be brought agt his deputy for his defaults discharged the sureties? Decided both in favor of the plf., the 1st on the authority of the P. M. G. is Early at the last S. C. and the 2d on those of the U. S. is Kirkpatrick & U. S. vs. Vanzant 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 a part, 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 sureties 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 no part of the evidence conduced to prove either actual or constructive fraud & therfore the plf. was entitled to Judgt on those issues.

The 7th plea on which an issue in fact was taken, presented the only difficult question, and it was upon that that I wrote to you from Phila. It stated that on a certain day in the year 1819, and in pursuance of a circular Letter from the P. M. G. requiring the several postmasters to renew their bonds, the principal in this bond gave a new bond to the P. M. G. with new sureties, in a larger penalty, with a condition precisely like to that in the present bond, & in addition thereto, for the faithful discharge of the duties of the principal as agent of the P. M. G. The breach in the declaration is in strict conformity with the Cond. of the bond on which this suit is brought, for not paying over monies recd by the principal as postmaster. The evidence stated in the dem. fully supports the plea.

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, the residue of the plea which states that all the balances then due had been paid, was fully made out by applying the subsequent payments to the balance then due, as decided in U. S. vs. Vanzant, and of course, the plf. could not recover. But if it did not terminate his responsibility, then the 2d quest. was, what Judgt was to be given?

Decided 1. The new bond is not an extinguishment or satisfaction of the old bond Cro. Car. 86. Cro. El. 716. 727— 1 Bur. 9. nor is it so pleaded. Nor did it operate to terminate the term of office of the principal, without which consequence, the liability of the deputy continued, until he was afterwards dismissed from Office. In point of fact, he continued to act as postmaster for 3 years after the new bond was given, under his original commission. There was no act of Congress, or of the P. M. G. which terminated his office on his giving the new bond, nor did the giving of it remove him, or terminate his office, by operation of Law upon any known principle. A new commission might possibly amount to a constructive termination of the old one, but I can imagine no legal principle that could give a like operation to a new official bond.

Neither can the new bond operate to discharge the surety upon the ground that it changed the contract into which he had entered, since it is the same with the old except as to the superadded duties of an agent, for which the deft is not liable, nor is he charged in this action.

Note, since the opinion of which the above is a short & very imperfect Synopsis, I have recd a letter from Mr Wheaton, mentioning that he had found the opinion in the case of U. S. vs. Nicoll, which I think strongly confirms the above view of this point.

He states the opinion to be, that the act of 15 May 1820 which requires new sureties to be given, by certain public officers, on or before the 30 Sept. 1820, does not expressly, or by implication, discharge the former sureties, it not requiring such officer, failing to give them to be dismissed; and if dcd, still the sureties wd not be discharged so long as the officer actually remained in office.

2. The other question was, what Judgt is to be given, where issue is taken on a plea, which, tho true in fact, and that appearing on a demurrer to evidence, yet which offers 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 enter Judgt for the plf., upon the insufficiency of the bar, as it might in that case, non obstante veredicto? my opinion was, & is, that where issue is taken on an immaterial point, and the Court may see that the issue may be amended by repleading, the proper course is to award a repleader. But where the plea sets up as a defence, a matter which is no defence at all, and the plf., instead of demurring, takes issue, the issue cant be amended by repleading, the defect being, and so appearing, inherent in the defence itself, & in that case, if there be a verdict finding the truth of the plea, the Court ought to give Judgt for the plf. non obstante &c. and in case of a dem. to the Evid. should enter Judgt as upon a confession for the insufficiency of the plea. See 1 Burr. 292. Rex vs. Philips & the Cases there cited. Stephens on pleading 117— 118— 140— 141— 164—165. 119. 150. 1 Wils. 63— I gave Judgt accordingly for the pl[aintif]f.

The 10th plea, on which issue in fact was also taken, & the truth of it established by the evidence in the dem. was, that the P. M. G., on a certain day in the year 1819, wrote to the principal in this bond, not to remit to him the balances due in future, but to retain them for the purpose of answering his drafts as the mony might be wanted in that Neighbourhood which matter was pleaded in discharge of the Surety as to his subsequent defaults— Justice Twisden decided cum furore, that it was no defence at all, and that plf. was entitled to Judgt on the insufficiency of the plea.

I shall be impatient to hear from you & brother Story. accept my thanks for the book of reports of your Circuit, & believe me to be my dear Sir very sincerely & affectionately yrs