I thank you for your late letter containing the Decisions of your spring & autumnal Circt.¹ I shall confine my Answer to your own Cases, intending to bring you an abstract of mine when I come to Washington this winter. Until very lately I thought it would be unnecessary, as the 4th volume of Mason is partly through the press, & I supposed it would include them. I think now it will not— But I shall bring you the printed sheets, as far as they go, which will be about 400 pages.

(1) As to Chew v. Egbert. I think your original decision right on both points. The last point is irresistible. But I think the first point also rightly decided, notwithstanding your own recent doubts. It was clearly a case of concurrent covenants; & in part a case the party suing must aver of some performance, or a tender of performance. You seem to think the clause which you had overlooked in the deed, clauses this construction, & shews, that the money is first to be paid; & therefore the Covenants were wholly independent. I think otherwise. The clause is merely an express declaration of what the Law would have implied, that the deed of the land should not be required, unless the price was paid. When paid? I say at the time of giving the deed — a concurrent act, & not a prior act. The vendee was not bound to pay the price unless when he paid it the other party was ready to waived deed— The payment is the price & the giving of the deed were still concurrent acts— The vendee were covenanted to pay the price, whether he should receive a deed of the land, or not.

2. Livingston v. Smith is perfectly right.² 

3. Norton v. Beach— I agree to this case upon the mere point, that the local law so settles it— Otherwise I should go the other way, upon the clear result of the English decisions. You will find my own opinion in Powell v. “Munson & Brimf. Manufactory Compy—3 Mason R. under pages 355. 356. &c.

4. Massie v. Craig is perfectly right.

5. So is Treadwell &c. v. Bladen upon the very distinction which you rely on.³

6. U.S. v. Hainey. I agree to your opinion, that the Dft was not guilty, upon the facts, of the offence as charged in the Indictment. The forgery was complete before she intervened.

7. U.S. v. Kendricks. I have several times ruled both points in the same way as you did. I think, that the last point is wholesome law. No man should be compelled to accuse himself of a crime, or even to degrade himself by answering such a question— It should be proved <illegible>.

8 & 9. Lansing v. Vaughan— I agree to, as I do also to Van Ness v. Bayard— They are unquestionable Law.

10 Herbert v. Haight. I agree with the decision. But I think, that as the release of dower was merely conditional, if the mortgage were discharged at any time, the right to dower would attach. I do not think, that the seisin, as to dower, was wholly defeated, unless the husband should redeem in his life time—a redemption, even by the Dowress, could have been sufficient. At least in Massachusetts we are so accustomed to consider the doctrine— Perhaps it is mere local law; though I think a Court of Equity ought to view a mortgage, as a mere family, & not, as defeating the right to dower absolutely.

12. U.S. v. Kirk. This is a very nice case. Though I confess my own opinion goes with yours.

13. Lessee of Lanning v. Stevens. I am entirely satisfied with the points ruled by you. But I think a plea to the Jurisdiction cannot be pleaded with any plea in bar. It is in its own nature a preliminary plea, & the genl issue admits the jurisdiction. This anomalous practice has been long discussed in my circuit. If I do not mistake, the Supreme Court have lately held a like doctrine with myself. (See 1. Peters Sup. Ct Rep. 476. 498.)

I had a taste of your Tea case in the Newspapers; but I wish much to read your opinion at large.⁴

I have not had time, as yet, to examine the case, which you have under advisement; but I shall come prepared to talk it over with you at our next meeting.

I have a copy of my Centennial Discourse for you— I thought, that it would be best to bring it with me, & not tax you with the present enormous postage on pamphlets.

My Circuits in the Spring & Autumn have been full of business; & you will be obliged to read some ample notes of points decided, & about which I much desire your opinion.

I deeply regret the overthrow of Mr Adams’s administration. But we must submit with as good a grace, as we may, & hope for the best.

     I have directed a box of fish to be sent to you, which I hope will reach you before we meet. I am most truly & affectionately your friend