After an absence from home for more than three months and a half, I have returned with health in no respect impaired by my official labors. I have not as yet had time to look into my domestic & agrecultural concerns, and have determined to write to you before they interfere to prevent me. many of the cases which came before the two courts are new and highly interesting, a report of which I shall endeavour to make as intelligible as can be done in the compass of a letter.

Philips vs. McCall— Libel for Salvage by the Surgeon of a merchant ship, the Mercury, belonging to Phila. which was captured as prize in the year 1809, on her return from India, by a French ship of war. Part of the Crew were taken out of her, and a prize master with men put on board & ordered to take her in for adjudication. on her passage to that place, a british frigate came in sight, and the Captors apprehending a recapture, they threatened to burn her unless the supercargo, Captain & surgeon would execute a ransom bond to reserve for the Captors one half of the Cargo in case of safe arrival— This being agreed to & done, the Captors withdrew in their boats, leaving such of the original Crew as had been retained in the prize to navigate the Ship in the best way they could. After suffering much fatigue & peril on account of the fewness of their hands, the ship arrived in safety at Phila. Decided that giving the ransom bond, and navigating the ship under all the difficulties of the voyage were, not such services as entitled the officers & the libellant to salvage. Capture does not so completely put an end to the Contract between the owners & Crew, and to absolve the latter from certain duties to the Ship as to stamp the services they may render for the safety of the property with the character of salvage merit, unless in a case of recapture. The opinion is long & the cases referred to numerous— it is difficult to abridge it.

Den e. d. Ridgeway vs. Underwood. One J.J. living in Phila. formed a plan for disposing of certain tracts of land lying in Pennsylva. & Jersey, by the sale of tickets which were to entitle the owner to the property which a corresponding number drewn from a wheel should indicate. The Land in question lying in N. Jersey, was drawn by A. and a deed for the same was made to him by J.J. in pursuance of the above Scheme. On the same day, J.J. executed another deed by which for the Consideration of $1 he released all his right &c. in & to the said land to the said A.— A. sold & conveyed the Land to B. & J.J. in consideration of $10 executed a deed of release to B. The lessor of the plf. was a purchaser of the land under a Judgt & execution agt J.J. on a bond dated subsequent to the Conveyances to A, but with notice of those conveyances. The Case did not state that J.J. was indebted at the time those Conveyances were made— The two first points decided were, that this was a lottery transaction; and that the Conveyance made to A in pursuance of it, was void under the lottery Act of N. Jersey, where the land in dispute lies; 'tho the lottery scheme was concocted & executed in Phila.— (as to these points you can form no Judgment without a further view of the case, as well as of the act of assemby of N. Jersey) The remaining questions respected the deed of release by J.J. to A. and depended upon the true Construction of the Statutes of the 13th & 27th Eliz. On those the following points were decided—1. That admitting the consideration in the Release to be nominal, still it was sufficient to pass the estate, & to prevent a resulting trust in the grantor, subject however to be impeached by Creditors & subsequent purchasers. 2. That the lessor of the plf. cannot be considered as a purchaser under the 27th Eliz. as he derives his title, not under J.J. but under the Sheriff— 3. If he could be considered as a purchaser, the law seems at length to be settled, that he would not be affected by notice of the prior voluntary conveyance. Doe vs. Ottley 9 East. [59]¹ 4. But tho not to be treated as a purchaser, he is yet to be considered as a creditor, or standing in the place of a Creditor, & within the 13th Eliz. 2 Johns. Ch. rep. Hildreth vs. Sands. 5th Considering him as a Creditor, he is still to be treated as a subsequent creditor, the deed of release being prior to the debt for which the Judgt was rendered. The rules of law & equity applicable to such a case, seem to be, that a voluntary deed is void as to prior Creditors, merely on the ground of indebtedness at the time but not so as to Subseq. Cred. unless the prior indebtedness was to such a degree as to create a presumption of fraud, or unless the transaction be attended by circumstances of fraud other than that of mere indebtedness 1 Atk. 93. 2 Brow. C.C. 92. 5 Vez. 387. 12 Vez. 155. 1 Madd. Ch. rep. 414. 11 Massach. rep. 421. 3 Johns. Ch. rep. 371. Amand vs. Dowager of Jersey Com. rep.² and many others.

6. Where a deed is impeached by Creditors, or purchasers, on the ground of fraud arising from inadequcy of price, the verdict must find, or the case state, the facts from which the inference is to be drawn— The Court cant presume it. quere if fraud should not be directly found or stated; or whether it is sufficient to state the facts. (What think of this?)

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Lownsdale vs. Brown—Rules for new trial & arrest of Judgt— In support of the last rule, objections were taken to 4 of the Counts, of which the 4th was principally argued as most defective vz. "that the deft being on the 1st Nov. 1809 indebted to plf. as drawer of a protested bill of Exchange, be then & there averred his inability to pay it, but promised the plf. that, if he would give him time, he wd pay the amount of sd bill whenever he should be able" & avers "that he gave him reasonable time accordingly & that when the suit was brought, deft was able" &c. objections— 1. The Consideration was past. 2. It is not stated that the promise laid was accepted by plf. 3d The new promise is no ground of action, tho it might have been given in evidence in an action on the bill. 4th Forbearance is no Considera. for an Assumpsit unless it be specified reasonable as to time. Opinion- 1st obj. cant be supported— a promise to pay on a Consideration executed is good, if it was induced by the request of the deft, or by a previous duty, or if, as in this case, the debt be continuing at the time, or is barred by the act of limitations &c. Pow. Cont. 350-351² & the cases there cited— But in this case, the Considera. was future—viz. forbearance Hob. 216. Cro. El. 74. 75. 849. 881. 665. Cro. Ja. 683. 1 Rolls ab. 27. pl. 49. 34[.] 2 obj. is opposed by the above cases, & by all the precedents, in none of which is acceptance by the plf. stated 2 Chitt. plead. 82. 3. 4.

3 obj. Tho the action may be maintained on the original ground, & the new promise be given in Evid. yet it may be also on the new promise—Selw. p. 52. 2 Stra. 890.

4. The point of law is admitted, but not its application because the promise laid was to pay in considera. of forbearance till the deft shd be able to pay,³ which is sufficient, whether it be made in general or specific terms, or indefinitely, in which latter case, the law intends a total forbearance, and after waiting a reasonable time the plf. may sue on the new promise Cro. Ja. 683 Mapes vs. Sidney— 3 Bulst. 206—Rolls rep. 37. Moore 1167. Cro. El. 665. Com. dig. Tit. Actions on the Case upon asst B 1— The construction of the promise made in this case is similar to that in May vs. Alvar in Cro. El. 3[87].⁴

This Count then is good; and even tho the others should not be so, yet as the Evidence given upon the trial applied to this Count, the Jury having found a general Verdict, the Court may direct the Judgt to be entered in this Count[.] The English cases go very far on this subject Eddawes vs. Hopkins Doug. 376. But on a writ of error the Court cant do this, but must order a Venire de Novo Doug. 730. 1 Bos. & Pull. Williams vs. Breedon.

Reasons assigned for a new trial are 1. That the Court allowed the protest of the bill of exchange to be given in evidence in support of the Counts on the bill, as well as of those on the new promise which was wrong, as this bill having been drawn at N. Orleans on Phila. is to be considered as an inland bill.

2. That the Jury not having stated on which of the Counts there verdict was founded, it may have been on those on the bill of Exchange, as to which the Court charged the Jury that the plf. was barred by a former Judgment.

3. That the Jury took with them depositions, a part of which had been rejected by the Court on the defts objection to it.

4. The Verdict adds⁵ to the amount of the bill damages & interest, & find the whole in Damages.

Opinion— 1. This is a foreign bill of Exchange (as this part of the opinion was published which you may have seen, I pass it by).

2. This objection affords no ground for a new trial because if there be two issues, or issues on two Counts, & the verd. be not contrary to evidence as to one of them, the Court will not grant a N.J. for it is right in part 5. Bac. Tit. Trial L.S. 4— 1 Barnes 9—317. 333. This verd. is clearly right on the Count above noticed & is in conformity with the Evid[ence].

3. If the parts of the deposition which were overruled were applicable to the Count to which the Evidence in the cause applied, & on which Judgt is to be entered; or if the deposition had been delivered to the Jury by the plfs. Counsel, the verdict should be set aside— But neither of these was the Case, and therefore the objection is not available. 5 Massach. R. 405. 21 Vin. 451.

4. The plf. was entitled to recover only the amount of the bill, (the promise not extending to damages) and interest from the time it was proved that the deft was able to pay, if the Jury thought proper to give it as damages, & unless the plf. will release the overplus, the verd. must be set aside.

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U.S. vs. Frederickston—mot. for a rule to show cause why the process in this case should not be set aside on the ground of an insolvent law of this State passed in 1814 which declares, that on the agreement of a majority of the Creditors, the debtor shall be released from all suits, & his property from execution, on account of any prior debt for 7 years. Rule refused, the law coming within the principle laid down in Sturges vs. Crowningsheild— If the legislature could release the debtor for 7 years, it might do so for 700 years or forever.

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U.S. vs. Slaymaker— Ind. for resisting the execution of a hab[ere] fac[ias] poss[essionem]— In this case, the following principles were laid down. That the deft cannot rule the Marshal to return the hab. fac. poss. tho the plf. may. The reason is that until the writ is returned, so as that its execution appears of record, the plf., if he is turned out (after possession deliverd to him) by the deft may upon suggesting vice-comes non mis[i]t breve, obtain a new execution aliter if he is turned out by a stranger. But if the first writ be returned executed, he cant take out an alias, & if he does, resistance to its Execution is not an offence within the law. But if the first writ be executed, but not returned, resistance to the Alias is an offence. 2 Keb. 241- 1 Keb. 779. 785. Styles 318. 408. 6 Mod. 27. 2 Brownlow 216. 253. Palm. 289. 1 Rolls rep. 353. Salk. 321. The above decision is founded on the old Cases contrary to a late decision in 1 Taunt. 55.

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Read vs. Consequa—motion to dissolve the Injunction. points decided—1. That it is contrary to the practice of the Court to dissolve till answer filed. It is sometimes done in England where the deft in equity lives abroad, upon an affidavit fully denying the merits of the bill. 1 Fow. Ex ch. pra. 282. Eden on Inj. 325.

2. The Court seldom if ever requires the mony to be brought into Court upon continuing the Injunction where the merits of the bill are, so far confessed by the answer as to render it necessary to continue it, unless the sum injoined has been found to be due by a verdict, or an award, or is sworn by the answer to be due. This order according to modern practice in the English Chanc. is sometimes made on an Affidavit denying merits Eden 112—116. 117.

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Trask & Davis vs. Duval—Declara. contained 2 Counts—1st For the freight due on a parcel of goods belonging to & deliverable by bills of lading to A.C. and which were delivered to deft the assignee of the bills of Lading. 2d on a special promise by deft to pay the freight if A.C. did not do so. The promise— the delivery to deft and the asst of the bill of lading were all proved. Charges— The assignee of a bill of Lading for a valuable considera. who recieves the goods mentioned in it is liable to the owner of the Ship for the freight & this arises from the terms of the bill of lading & the implied promise of the assignee on procuring the goods Cock vs. Taylor 13th East. In Moorson vs. Kymer 2 M. & S. 303 he was held not liable upon an implied promise because by the Charter party the Charterer had bound himself by an express promise to pay. See Laws on Ch. part. 303. 304. 2 Holt on Ship. 163-164 1 Marsh. rep. 146. 4 Rob. rep. Am. Ed. 194-1 Esp. Cas. 23.

2. In this Case there was an express promise by deft to pay the freight, not as assignee of the bill of Lading (a fact which has but lately come out) but as Surety for A.C. the original owner. In such a case, there can be no room for an implied promise. But the plf may recover on the express promise if proved to the Satisfaction of the Jury.

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Boudereau et al. vs. Montgomery and wife—In Equity. The plffs, about 100 in number claimed the real and personal estate of which Joseph White one of the Arcadians deported by the british Govt in [17]54, died possessed of, as the heirs of said White— The wife of Montgomery claims as the sole heir, and the other two defendants are the administrators of White. The only question which arose at the hearing in this stage of the cause was, whether depositions taken in an Ejectment brought by Boudereau and a few others of the plfs. agt Montgomery & wife only, in the State Court, could be read in Evidence 1st for every purpose to which they applied, or 2dy to prove pedigree only. opinion. They can not be read for the first purpose because the parties plfs. are not the same; for if the depositions had been in favor of the sole heirship of Mrs M. she clearly could not have used them agt such of the plfs. in this cause, are were not parties in the former suit & the rule works reciprocally, so as to forbid the plfs. to use that evidence agt her. Gilb. Ev. 28. Bull. N. P. 232— The objection as to Cross not having been a party in that Suit might be got over, as there was a privity between him & his Coadministrator— In law they are but one— Godolph. 134. Rolls ab. 924. 2 Vez. 265 Shep. T. 484. 485 Dy. 23. pl. 146. Phil. Ev. 227. 1 L. Ray. 730. Com. dig. Evid. A. 5. Bull. N. P. 232. <illegible> 11 State trials Duch. Kingstons case. Hardr. 472.

2. The Evid. is proper to prove pedigree, notwithstanding the decision in the Berkeley peerage Case, decided in the H. of Lords in 1814 4 Campb. 401— 13 Vez. Whitlock vs. Baker. The distinction between ante & post litem mortam evidence, has never to my knowledge been recognized in this Country; but the Courts, so far as I am informed of their decisions, have proceeded on the rule as laid down by Buller in his N.P. 233. Cowp. rep. 591. (You will call me a bold man to set my opinion in opposition to 11 of the 12 Judges of England; but I am satisfied that I conform to the antient English doctrine, & to the Cons. law of this Country, & I would add to right reason).

Martin vs. Bank of the U.S. The plf. being the owner of sundry Notes of this Bank, cut them into two parts, & sent the right hand parts in one letter by post, and the left hand in another by another mail— The former miscarried & were lost— The latter arrived safe. In Consequence of a decision of this Court in the year 1808, in the Case of Bullet vs. The bank of Pennsylva., that in a case of this kind, the plf. proving the loss of one half of a bank note, and tho he was the true owner of it, he was entitled to recover the whole even at law, the Defts published a notice that, after a Certain day, they would not pay notes voluntarily cut, unless both parts were produced. It was admitted for the sake of trying the question that the plf. had this notice before he cut the notes—Opinion that the point decided in the above case was not affected by the notice given in this— The loss of the evidence of a debt is not a loss of the debt— The owner by the general rules of evidence has a right to resort to secondary evidence; and the maker of the note has no right to vary the rules of evidence, or to prescribe by what rule of evidence he will be bound & when not— If the defts could legally absolve themselves from their obligation in this case, they might do so by giving notice that they would not pay a lost note, or one torn by accident. The bank never can be bound to pay twice, since even a bona fide purchaser from the robber or finder of the other half of the note, buys with notice that there is another half in the possession of some other person, and he can never prove himself to be the legal owner of the debt of which the note was the evidence, without perjury, which the law neither presumes nor can guard against— The opinion given in the Case in 1808 was followed up by a very able one by Judge Drayton in S. Carolina & by the C. Court for the district of Cola and was not resisted in this argument.

Isaacs vs. Cooper—Application by a patentee for an injunction— The following principles were laid down. Equity will not injoin prior to a trial at law unless the bill state a clear right & a possession under it to be verified by affidavit. Tho the Judge should doubt as to the validity of the patent, the injunction will be granted, if the possession is clearly proved. But not so if the defects in the specification are glaring. If the patent be for an improvement upon an original discovery of the patentee, which is not described in the specification, either expressly, or by reference to something from which a knowledge of the original discovery may be obtained, the Court refuse the Injunction.

There were other Cases decided upon the land laws of Pennsylva. with a report of which I will not swell this letter, already too long, as they could not interest you altho they are highly important in that State.

By way of filling up this Sheet, let me ask you what is thought with you of the antifederal doctrines of Virginia? The proposed bill, which you have no doubt seen, levelled agt the Supreme Court, & which I have as little doubt will be introduced into this legislature, indicates pretty clearly what is intended, and I am persuaded that these agitators aim at nothing less than the subversion of the general Govt and their efforts to pull down the Judiciary is but a Step, tho an all important one, in this glorious work. Can there be a doubt of Mr Jeffersons sentiments upon this subject, after stating in his letter to Mr Jarvis that "the exemption of the Judges from responsibility to the people in the elective capacity is quite dangerous enough"? "That there is no safe depositary of the ultimate powers of the Society but the people themselves"? and yet as if he never can be consistent he adds "The Judges have more frequent occasion to act on Constitutional questions, because the laws meum & tuum & of criminal Acts forming the great mass of the System of law, constitute them a particular department." If then they are called on to act on such questions, it follows I presume that they must act, & they must decide. But must they not decide according to their best Judgment? And yet, if they do decide agt the popular feeling, the remedy, he thinks, should be with the people in their elective Capacity. I am told that he has lately come out in more decided & particular terms, but I have not seen the peice. My anticipations of the fate of our admirable & admired Govt are indeed very gloomy. But I trust that there is a redeeming Spirit in the Eastern & middle States, which, yet cannot preserve entirely, will continue its existence for many years to come— God bless you my dear Sir and believe me to be truly yr faithful friend & affect. Servt