4. A contract to procure an extension of credit, upon all the debts payable by a mer. chant who had become insolvent, so as to enable him to resume and continue his business, is not thus divisible. Hyde v. Booraem, 232.

5. A contractor on a public work, having underlet his contract to a sub-contractor, with a stipulation that, if the latter failed to use due diligence, the former might assume the direction, and complete it at the expense of the latter. Held, that a charge for superintendence, after assuming the work, could not be made against the subcontractor. Fresh v. Gilson, 324.

ASSUMPSIT, 1; CONSTITUTIONAL LAW; COURTS OF THE UNITED STATES, 10; GUARANTEE; LEX LOCI.

CORPORATION.

LIMITATIONS, &c. 5.

COSTS.

If a judgment or decree is reversed, except for want of jurisdiction, the plaintiff in error or appellant recovers costs, in this court. Bradstreet v. Potter, 316.

APPEAL, 4.

COURTS OF THE UNITED STATES.

1. To give this court jurisdiction under the 25th section of the Judiciary Act, (1 Stats. at Large, 85,) it must appear on the record itself to be one of the cases enumerated in that section; and nothing out of the record certified to this court can be considered. This may be shown: 1. By express averment in, or necessary intendment from the pleadings. 2. By a ruling stated in a bill of exceptions. 3. In Louisiana, by a statement of facts, and the decision thereon. 4. By an entry on the record of proceedings of the appellate court, in a case in which such question may have arisen and been decided that it was in fact raised and decided; and this entry must appear to have been made by order of the court, and must be certified by the clerk as part of the record. A certificate to that effect, made by the presiding judge, and certified by the clerk as part of the record, will be presumed to have been made by authority of the court. 5. In equity, it may be stated in the final decree. 6. It may appear that the state court could not have given the judgment or decree passed without deciding such question. Armstrong v. Treasurer of Athens County, 299.

2. Under the 25th section of the Judiciary Act, (1 Stats. at Large, 85,) if the decision of the state court was in favor of the title claimed by the plaintiff under an act of congress, this court has not jurisdiction, although proceedings and acts under another act of congress were relied on to show fraud in the title of the plaintiff, and the state court denied all such effect to those proceedings. Fulton v. M'Affee, 221. 3. It not appearing by any averment on the record, in an equity case, that a question under the constitution of the United States was raised in the State court, and as that court might have decided the case without passing on such a question, this court has not jurisdiction under the 25th section of the Judiciary Act, (1 Stats. at Large, 85.) Mills v. Brown, 408.

4. Under the 25th section of the Judiciary Act, (1 Stats. at Large, 85,) it is not suf ficient that one of the questions therein mentioned was involved in the cause, and might have been decided; it must appear either in terms, or by necessary intendment, that it was decided, and against the right claimed. Coons's Lessee v. Gallagher, 8.

5. On an appeal from a decree of the court below, by which a mandate of this court was construed and applied, this court will examine the mandate and the proceedings upon which it was founded, and determine whether it has been correctly construed. Mitchel v. United States, 24.

6. The mandate in Mitchel v. The United States, 9 P. 711, thus examined, and its construction by the court below found correct. Mitchel v. United States, 24.

7. A statute of a State, proprio vigore, cannot affect the modes of proceedings in a court of the United States. It is obligatory only so far as adopted by congress, or by the court, under the authority of congress. Keary v. Farmers and Merchants' Bank of Memphis, 195.

8. A court of the United States cannot, by a rule, adopt the provisions of a state law which is repugnant to, or incompatible with a positive enactment by congress. Ib. 9. A rule of practice, adopting a state law, made by a district judge in the circuit court, will not be recognized in this court. Amis v. Smith, 311.

10. The 34th section of the Judiciary Act, (1 Stats at Large, 92,) is limited to the laws of a State strictly local, that is to say, the positive statutes of the State and their interpretation by the local tribunals and the rights and titles to things having a permanent locality, such as real estate; it does not apply to the construction of contracts, or to questions of general commercial law. Swift v. Tyson, 166. 11. Chancery practice does prevail in the circuit court of the United States for the district of Louisiana, and a complainant has a right to proceed in accordance with the rules prescribed by this court for the practice in equity of the circuit courts, and where they are silent, according to the practice of the high court of chancery in England. Gaines v. Relf, 5.

12. A judgment of dismissal under the 43d rule of this court, is nisi only, during the term, and in the exercise of a sound discretion the court may, and unless injurious to some substantial right of the defendant, will reinstate the case. Gwin v. Breedlove, 90.

13. Where upon a question under the local law of Alabama, the court were equally divided, no opinion was given. Ellis v. Jones, 567. 14. On an appeal from the circuit court of the United States for the district of Louisiana, in a cause of collision, this court was equally divided upon the question of reversal of the decree of the circuit court, and therefore no opinion was pronounced. Strout v. Foster, 505.

15. An assignment of a note payable to bearer, by delivery only, without indorsement, is not within the 11th section of the Judiciary Act, (1 Stats. at Large, 78,) and it is not necessary to aver the citizenship of the assignor. Smith v. Clapp, 47. 16. In Alabama, if an action be brought on a joint promissory note against two makers, and one is not found, the plaintiff may discontinue against the latter and proceed against the one served; if he does so, an averment in the writ only, of the citizenship of the one not proceeded against, is sufficient. Ib.

17. A statute of Mississippi, requiring a joint action against the drawer and indorsers of bills, and the makers and indorsers of notes, is repugnant to the 11th section of the Judiciary Act, (1 Stats at Large, 78,) which enables the holder to sue his immediate indorser severally, if a citizen of another State, though the drawer is a citizen of the same State as the holder. Keary v. Farmers and Merchants' Bank of Memphis, 195.

18. Under the 11th section of the Judiciary Act, (1 Stats. at Large, 78,) the indorsee of a negotiable promissory note cannot sue in the circuit court, if the maker and payee were, at the time the action was brought, citizens of the same State. Gibson v. Chew, 316.

19. Under the "Act to establish a uniform system of bankruptcy throughout the United States," (5 Stats. at Large, 440,) the district judge could not sit in the circuit court with the judge of the supreme court assigned to that circuit, on the hearing of questions certified into the circuit court, and a certificate of division of opinion cannot bring up such questions to this court. Nelson v. Carland, 599.

20. Under the 12th section of the Judiciary Act, (1 Stats. at Large, 79,) if the damages claimed in the declaration exceed the sum of $500, it is error for the state

court to refuse the defendant's petition for a removal of the suit to the circuit court, upon the ground that it does not appear to the satisfaction of the court that the amount in controversy exceeded the sum of $500. Gordon v. Longest, 198. 21. The sum demanded in the declaration is the amount in controversy. Ib. APPEAL; COSTS; FORTHCOMIng Bond; Insolvent, 2; Insurance, 6; InTERNATIONAL LAW; LIMITATIONS, &c. 6; SEA, 4; STATUTES, 1; Waiver; Writ OF ERROR.

CURTESY.

A husband has no estate by the curtesy, in lands of which his wife was disseised at the time of the marriage, and upon which he never entered; actual seisin, during the coverture, being necessary to constitute that estate. Mercer's Lessee v. Selden, 491.

CUSTOM AND USAGE.

BANK.

DAMAGES.

COLLISION, 3; CONTRACT, 3; COURTS OF THE UNITED STATES, 20. 21; EQUITY, 4.

DEBTOR AND CREDITOR.

ASSIGNMENT, 1–3.

DEED.

A deed left with the county clerk to be recorded, and held by him for the grantee, is, in law, delivered to the grantee. Tompkins v. Wheeler, 202.

LIMITATIONS, &c. 4; PLEADING, 7.

DEFAULT.

AMENDMENT, 3; PARTNERSHIP.

DEMURRER.

PLEADING, 9-11.

DEPARTMENT OF THE UNITED STATES GOVERNMENT.

STATUTES, 1; UNITED STATES.

DEVISE AND LEGACY.

A disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of his creditors, operates to create a charge of his debts on his real estate, though no such charge is made in words by the will; and the executor may be compelled by the creditors to execute the trust. Bank of the United States v. Beverly, 533.

ASSIGNMENT, 4; SLAVES, 1. 2.

DISCHARGE.

INSOLVENT, 2.

DISCONTINUANCE.

AMENDMENT, 3; COURTS OF THE UNITED STATES, 16; PARTNERSHIP.

DISTRESS.
EJECTMENT, 2.

DISTRICT OF COLUMBIA.

EXECUTORS, &c.

DOWER.

1. Under the law of Maryland, before the act of 1822, joint-tenancies existed, and the
wife of a joint-tenant was not dowable of land so held. Mayburry v. Brien, 11.
2. Nor did the right of dower attach upon a momentary seisin, where the husband
mortgaged back the land, at the same time when it was conveyed to him. Ib.

APPEAL, 3.

EJECTMENT.

1. In ejectment, if it appear that the lessor died before the date of the demise laid in
the declaration, the plaintiff cannot recover. Connor v. Bradley, 574.

2. Under the 4 Geo II. c. 28, to give a right to recover in ejectment for non-payment
of rent, it must be proved that on some day between the time when the rent fell due
and the day of the demise, there was not, on the land, sufficient property liable to
distress to countervail the arrears, and this must appear from the result of an
examination of every part of the premises. Connor v. Bradley, 574.

3. It is not a defence to an action of ejectment, that the defendant holds a bond of the
plaintiff, conditioned to convey the land to him. He must resort to a court of equity.
Watkins v. Holman's Lessee, 174.

ENGINEER.
ARMY, &c. 4–6.

EQUITY.

1. To obtain relief in equity on the basis of an agreement, made after the commence-
ment of the suit, the agreement must be brought before the court by a supplemental
bill. Hobson v. M'Arthur's Heirs, 241.

2. Where a bill is framed to obtain a specific performance of an agreement to convey
land, under a prayer for general relief, the court cannot order a sale of the land,
even if the proofs would justify such relief; the bill should have been framed with a
double aspect, and with alternative prayers. Ib.

3. If one partner retire, and the others receive the partnership effects, and covenant
to apply them to pay the debts of the firm, and pay over to him a certain sum, if so
much should be collected, the retiring partner is entitled to an account and relief in
equity. Kelsey v. Hobby, 290.

4. Though it may be necessary to ascertain unliquidated damages, this does not defeat
the jurisdiction of a court of equity; it may be done by a master, or by an issue of
quantum damnificatus. Ib.

5. A release by the complainant, executed pending a suit in equity, was filed in the
cause, and the parties proceeded to take evidence in support and impeachment of it.
Held, it was too late to object, in the appellate court, that a cross-bill should have
been filed. Ib.

6. If a settlement of an account is the consideration of a release, and the settlement is
successfully impeached, the release has no operation in equity. Ib.

7. If a party, detained in a city, distant from his home, by inability to procure special
bail, settles an account, not the subject of the suit in which bail is required, as a
means of procuring his liberation, without examination of books or vouchers, and in
a manner highly injurious to himself, it will not be allowed to stand, in equity. Ib.
APPEAL, 1-3; COURTS OF THE UNITED STATES, 1. 3. 11; Ejectment, 3; Judg-
MENT, &c. 1. 3; LAPSE OF TIME; LIMITATIONS, &c. 3; MORTGAGE; PLeading,
3-6; PUBLIC LANDS, 25. 26.

ESCAPE.

To a declaration in debt against the sheriff, averring, among other things, that the sheriff suffered and permitted the debtor in execution to escape and go at large, &c., the defendant pleaded that he did not owe the debt, &c. The jury found that he did owe the said debt, in the declaration mentioned, in manner and form, &c. Held, that the plea put in issue every traversable fact, and the verdict must be taken to find each of them for the plaintiff; and that it satisfied the requirement of the statute of Mississippi, that, in such an action, the jury must find the debtor escaped, with the consent, or through the negligence of the sheriff, in order to charge him. Long v. Palmer, 186.

ESTOPPEL.

The vendee is not estopped from disputing the title of his vendor. Watkins v. Holman's Lessee, 174.

EVIDENCE.

1. Declarations of the deceased husband of one of the plaintiffs, claiming as heir of her father, that his wife's mother was not married to her father, are admissible. Jewell's Lessee v. Jewell, 578.

2. A publication, by the plaintiff's father, of a notice in a newspaper, to the effect that her mother was not his wife, made soon after they ceased to cohabit, is admissible as part of the res gestæ connected with the cohabitation and separation. Ib.

3. The question being, whether an invoice was made with intent to defraud, other invoices, of similar articles, imported by the claimant, some before and some after the importation in question, are admissible in evidence, if they tend to prove a fraudulent intent. Wood v. United States, 336.

4. Ships' papers, and documents accompanying property, under the laws of nations, are but prima facie evidence of property, and are of no force when shown to be fraudulent. United States v. Schooner Amistad, 156.

5. If an answer set up the dismissal of a former bill for the same cause, the respondents must prove the allegation, by producing a copy of the record. Bank of the United States v. Beverly, 533.

6. A volume of state papers published by authority of congress, is admissible evidence of the genuineness of the papers it contains. Watkins v. Holman's Lessee, 174.

7. Secondary evidence of instructions of the President to the secretary of the treasury admitted, after evidence tending to show the destruction of the written original instruction. Williams v. United States, 614.

8. Though a treasury transcript, merely stating balances, is not evidence under the act of March 3, 1797, § 2, (1 Stats. at Large, 512,) yet if the whole transcript taken together does contain the items, so as to show how the balances were struck and of what items composed, it is sufficient. Gratiot v. United States, 106.

9. An official certificate of the secretary of the Spanish government of East Florida, is evidence of the title papers, the originals of which were kept in the public archives. United States v. Rodman, 50.

10. An official certificate of the secretary of the Spanish government of East Florida is evidence of the genuineness of a copy of the grant. United States v. Delespine's Heirs, 78.

11. The order in which proof shall be exhibited, is matter of discretion of the court, rather than of strict right. Wood v. United States, 336.

ADVERSE POSSESSION; GUARANTEE, 1-3; LAW AND FACT; MARSHAL, 3; MORT GAGE, 3; PATENT, 4; PUBLIC LANDS, 21–24; SURETY, 6.

EXCEPTIONS.

EVIDENCE, 11; LAW AND FACT.