Instead of that, the judgment in this case was as follows: "It is considered by the court, and adjudged, that the plaintiff do have, and recover of and from the defendant, impleaded as aforesaid, the sum of $7,648.33," with interest and costs.

Beyond doubt, the suit in this case was against the defendant, as the executor of the last will and testament of John Gordon, deceased; and it is equally clear, that the declaration does not contain any allegation that the defendant had been guilty of any waste of the assets in his hands, or of any mismanagement in the performance of his duties as executor of the last will and testament of the deceased.

When the suit is against the defendant as executor, and no devastavit is alleged, it is clear that a judgment de bonis propriis is unwarranted, even if it appear that the defendant has received assets, unless it appears that no assets can be found. Boyce's Ex'rs v. Grundy, 9 Pet. 275.

Plene administravit is doubtless a good plea, and, if sustained by sufficient evidence, it is a good defence; but the rule is, that the jury, under such a plea, if no devastavit is averred, must find the amount of the assets, if any, before any judgment can be rendered. Fairfax's Ex'r v. Fairfax, 5 Cranch, 19.

Even if it appear that an executor has received assets, still the judgment or decree should be against him, in his representative character, to be levied out of the assets in his hands, when no devastavit is averred and proved, unless it appear that no such assets can be found; in which event, the rule is, that the judgment may, if so ordered, be levied out of his own proper goods.

Apply these rules to the case before the court, and it is clear that the judgment is erroneous. Judgment reversed

TERRY v. HATCH.

1. Under sect. 692 of the Revised Statutes, an appeal could not be had to this court from the final decree of a Circuit Court, unless the matter in dispute, exclusive of costs, exceeded the sum or value of $2,000.

2. In a suit by its creditors against an insolvent bank, which had made an assignment for their benefit, claims amounting to $440,000, including a decree in favor of A. for $23,297, and judgments in favor of B. for $88,000, were proved and allowed. There was realized under the assignment $30,000, the pro rata distribution of which was decreed by the court. A. filed an exception to the allowance of B.'s claim, which was overruled; whereupon he, by leave of the court, took a separate appeal, "without joining any party to the record with him as appellant," or any party as defendant except B. Held, that the amount in dispute here is the interest of A. in that portion of the $30,000 payable by the decree to B., which the former would have received had his exception been sustained, and the amount decreed the latter been distributed pro rata among all the creditors. As that interest is less than $2,000, this court has no jurisdiction.

APPEAL from the Circuit Court of the United States for the Southern District of Georgia.

Mr. Harvey Terry for the appellant.

Mr. A. T. Akerman, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

The Bank of Commerce, located at Savannah, Ga., being insolvent and unable to proceed with its business, made an assignment of its property to John C. Ferrill for the benefit of its creditors, of whom the appellant was one. He commenced this suit "in behalf of himself and all other parties in like condition who will concur and unite and contribute to the expenses," to obtain a decree in his own favor against the bank for the amount of his debt; an account by the assignee; the conversion of the assigned property into money under the authority and direction of the court, and the distribution of the proceeds among the creditors according to the assignment. In the progress of the cause a decree was rendered against the bank and in favor of Terry for $23,297. Afterwards decrees were entered requiring all persons interested in the distribution of the assets to make themselves parties, and referring the cause to a master to take testimony and report the amounts due to the

several claimants, the nature of their respective claims, and the order in which they were entitled to payment out of the fund in court.

The master reported, allowing claims amounting in the aggre gate to about $425,000, all of which were entitled to participate pro rata in the distribution. Among the claims allowed were the decree in favor of Terry, $23,297, and several judgments in favor of George W. Hatch, amounting in all to $75,000.

Terry excepted to the report, because,

1. An account of $25 presented by him, and on which ne claimed priority of payment over the other creditors, had been disallowed; and,

2. The claim in favor of Hatch had been allowed.

Both these exceptions were overruled. The amount allowed to Hatch was increased to $88,000, or thereabouts; the report in all other respects confirmed, and an order entered for the payment of the fund in court to the several creditors, in accordance therewith.

The amount of the fund in court for distribution is stated to have been about $30,000, and the total amount of the allowed claims not far from $440,000; so that Hatch would receive for his dividend, under the decree as entered, about $6,000.

Terry took this appeal, which is separate, "without joining any other party to the record with him as appellant," or any party as defendant except Hatch. Such was the order of the Circuit Court when allowing the appeal upon his petition.

Hatch now moves to dismiss, for the reason that the "matter in dispute" is not sufficient in amount or value to give this court jurisdiction.

Sect. 692, Rev. Stat., in force when this appeal was taken, permitted appeals to this court "from all final decrees of any circuit court, or of any district court acting as a circuit court, in cases of equity, and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of $2,000."

The matter in dispute between the parties who are here is that part of the money payable to Hatch under the decree which would have gone to Terry if his exceptions had been

sustained. Terry presented an account for $25, on which he claimed priority of payment; but, upon its disallowance, Hatch became entitled to no more than his share upon a pro rata distribution of that amount to all the creditors. So, too, Hatch, upon the allowance of his claim, became entitled under the decree to a dividend of about $6,000; but, if it had been disallowed, Terry would have received only his share of the amount of the dividend upon a like pro rata distribution. If Terry succeeds in this appeal, he can only recover from Hatch what would have been distributed to him in the court below, if his exceptions had been there sustained. The aggregate of the claims allowed, deducting that of Hatch, is about $350,000; and of this amount Terry has but $23,297. Upon a distribution of the amount decreed to Hatch among the other creditors, the dividend would be less than two per cent upon the amount of the several claims, or but little more than $500 to Terry. It is clear, therefore, that the amount in dispute is less than $2,000.

Appeal dismissed.

BEAVER v. TAYLOR ET AL.

1. If one of a series of propositions presented to a court as one request for a charge to the jury is unsound, an exception to a refusal to charge the entire series cannot be maintained.

2. An exception to the entire charge of the court, or, in gross, to a series of propositions therein contained, cannot be sustained, if any portion thus excepted to is sound.

3. An exception to such portions of a charge as are variant from the requests made by a party not pointing out the variances, cannot be sustained.

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

This was ejectment brought by plaintiff in error, to recover an undivided sixth part of the north-west quarter of section thirty-six, the north-east fractional quarter of section twentyseven, the south fractional half of section twenty-six, and the north-east fractional quarter of section thirty-five, in township seventeen south, range one west, situated in the county of Alexander and State of Illinois, at or near the junction of the

Ohio and Mississippi Rivers. The case was tried before a jury, who found the issue for the defendants. A motion for a new trial was made; and thereupon defendants filed a stipulation, that the verdict might be so modified as to show a verdict for the plaintiff in fee-simple to the undivided sixth part of north-east fractional quarter of section twenty-seven, and that judgment might be entered therefor non obstante veredicto. Plaintiff refused to consent to said stipulation; and thereupon the motion for a new trial was overruled, and judgment entered for the defendants. It was admitted, on the trial, that the plaintiff at the time of the institution of the suit, July 17, 1854, and at the time of the alleged entry of the defendants, was the owner in fee of one undivided sixth part of the premises mentioned in the declaration, by title derived from Isabella F. Bond, through Joseph B. Holmes, unless said title was barred or divested by the evidence submitted on the part of the defendants; and that the defendants at the same time were the owners in fee of the other five-sixths of said premises, and exercising acts of ownership over the entire premises. The title of defendants to the one-sixth claimed by the plaintiff is based on a claim and color of title to, and seven successive years' possession and payment of taxes upon, the said one-sixth, under sect. 1. of the act of the legislature of March 2, 1839, which is as follows:

"Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owners of said lands or tenements, to the extent and according to the purport of his or her paper-title. All persons holding under such possession, by purchase, devise, or descent, before said seven years shall have expired, and who shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section." Rev. Stat. 1874, p. 674.

The defendants, for the purpose of showing claim and color of title made in good faith, introduced in evidence, without objection, a deed from Achsah Bond, as guardian of said Isa