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Deacon v. Oliver et al

Oliver, of false and fraudulent concealment, have not been sus. tained, it is due to the memory of one who always sustained a high reputation as a merchant and man of honor, to notice this point.

It must be remembered that the purpose of the interrogatories was to ascertain whether Oliver had in his hands any credits or effects of Lyde Goodwin, subject to attachment; and also that Brown, the insolvent assignee of Goodwin, was supposed to have had the title to Goodwin's interest vested in him. The legitimate inquiry was, therefore, not whether Brown had abused his trust, by selling or mortgaging the trust property for the benefit of Goodwin; or whether Oliver's claim under the assignee was valid or not. This inquiry was wholly irrelevant in the investigation, under the attachment proceeding. Nor was Oliver bound, in that investigation, to make any disclosure of the strength or weakness of his own title, which was hostile to that of the plaintiff. The discovery sought, was not of Oliver's equities, but of Goodwin's assets. Oliver's answers to the in. terrogatories were drawn, no doubt, by learned counsel, fully aware of the nature of the proceedings, and the rights of the parties under-them.

The answers were strictly true to the letter. The garnishee had not in his hands, “any funds, evidences of debt, stocks, certificates of stock, belonging to Lyde Goodwin, nor any acknowledgment by the Mexican government to said Lyde Goodwin,” on which the attachment could be laid. What claims or securities he himself had as a creditor of Goodwin, the plaintiff in that proceeding had no right to inquire, nor was Oliver bound to answer. If he had nothing which the plaintiff could attach, it was no fraud on plaintiff to keep his own counsel, and make no disclosure as to the nature of his own securities.

The decree of the Circuit Court is therefore affirmed.


This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.



1. It is a bad mode of pleading, to unite pleas in abatement and pleas to the merits.

And if after pleas in abatement, a defence be interposed, going to the merits
of the controversy, the grounds alleged in abatement become thereby imma-

terial and are waived. Sheppard v. Graves, 505.
2. In this case, as in the preceding, it is dccided, that where the plaintiff averred

enough to show the jurisdiction of the court, and the defendant pleaded in
abatement that the plaintiff was disabled from bringing the suit, on account
of residence, it was incumbent upon che defendunt to sustain the allegation by

proof. Sume v. Same, 512.
3. Until that was donc, it was not necessary for the plaintiff to offer any evidence

upon the subject. Ibid.
Where a collision takes place between two ressels at sea, which is the result of

inevitable accident, without the negligence or fault of either party, each vessel

must bcar its own loss. Steinbach v. Rae, 532.

1. Under the attachment law of Maryland, a share in the Baltimore Mexican Com-

pany, which had fitted out an expedition under General Mina, was not, in
1827, the subject of an attachment under a judgment, whether such share was
held by the garnishee under a power of attorney to collect the proceeds, or un-

der an equitable assignment to secure a debt. Deacon v. Oliver, 610.
2. The answers of the garnishee to interrogatories filed, were literally correct. He

had not in his hands any “funds, evidences of debt, stocks, certificates of
stock," belonging to the debtor, nor "any acknowledgment by the Mexican

government, on which an attachment could be laid. lbid.
1. An appeal will not lic to this court from a refusal of the court bciow to open a

prior decree, and grant a rehearing. The decision of this point rests entirely

in the sound discretion of the court below. Wylie v. Core, 1.
2. The case of Brockett v. Brockett, (2 How. 240,) explained. Ibid.
3. Two appeals having been taken, one from the original decree, and the other from

the refusal to open it, the latter must be dismissed, and the case stand for hear-

ing upon the first appeal. Ibid.
4. A motion for a mandate upon the court below, to carry the decree into execu.

tion, overruled. Ibid.
5. A reargument of a case decided by this court will not be granted, unless & mem-

ber of the court, who concurred in the judgment, desires it; and when that is
the case, it will be ordered without waiting for the application of counsel.

Brown v. Aspden, 25.
6. And this is so, whether the decree of the court below was affirmed by an equally

divided court or a majority; or whether the case is one at cominon law or

chancery. Ibid.
7. The rules of the English Court of Chancery have not been adopted by this

court. Those whicl. ire applicable to a court of original jurisdiction, are not

appropriate to an appellate court. Ibid.
8. A court of equity has jurisdiction of a bill against the administrator of a de-

ceased debtor, and a person to whom real and personal property was conveyed
by the deceased debtor, for the purpose of defrauding creditors., Hagan v.

Walker, 29.
9. In such a case, the court does not exercise an anxiliary jurisdiction to aid legal

process, and consequently it is not necessary that the creditor should be in a


CHANCERY (Continued).

condition to levy an execution, if the fraudulent obstacle should be femoved.

10. It is proper to make a prior encumbrancer, who holds the legal title, a party to

the bill, in order that the whole title may be sold under the dccrce; for the pur-
pose of such a decree, the prior encumbrancer is a necessary party; but the
court may order a sale subject to the encumbrance, without having the prior

encumbrancer before it, and in fit cases it will do so. lbid.
11. If the prior encumbrancer is out of the jurisdiction, or cannot be joined with.

out defeating it, it is a fit cause to dispense with his presence, anů order a sale

subject to his encumbrance, which will not be affected by the decree. Ibid.
12. Whereveal estate is in the custody of a receiver, appointed by a court of chan.

cery, a sale of the property under an execution issued by virtue of a judgment

at law. is illegal and void. Wiswall v. Sampson, 52.
13. The proper moles of proceeding pointed out, to be pursued by any person who

claims title to the property, either by mortgage, or judgment, or otherwise.

14. Where there was a judgment at law against a defendant in Mississippi, and he

sought relief in equity, upon the ground that the consideration of the contract
was the introduction of slaves into the State, and consequently illegal; a court
of cquity will not grant relief, because the coniplainant was in pari delicto with

the other party. Sample v. Barnes, 70.
15. Morcover, such a defence would have been good at law, and the averments, that

deception was practised to prevent the complainant from making the defence,
are not sustained by the evidence in the case. And, further, after the judg.
ment, the complainant gave a forthcoming bond, thus recognizing the validity

of the judgment. lbid.
16. Where an antenuptial contract was alleged to have been made, and the affidavits

of the partics claiming under it alleged that they never possessed or saw it;
that they had made diligent inquiry for it, but were unable to learn its present
existence or place of existence; that inquiry had been made of the guardian
of one of the children, who said that he had never been in possession of it,
and did not know where it was; that inquiry had been made at the recording
offices in vain, and that the affiants believed it to be lost; secondary proof of

its contents ought to have been admitted. De Lane v. Moore, 253.
17. Whether recorded or not, it was binding upon the parties. If recorded within

the time prescribed by statute, or if reacknowledged and recorded afterwards,

notice would thereby have been given to all persons of its effect. Ibid.
18. If it was regularly recorded in one State, and the property upon which it acted

was removed to another State, the protection of the contract would follow the

property into the State into which it was removed. Ibid.
19. But where no suit was brought until eight or nine years after the death of the

husband, and then the one which was brought was dismissed for want of pro-
secution; another suit against the executors who had divided the property,

comes too late. Ibid.
20. A cour, has a right to set aside its own judgment or decree, dismissing a bill in

chancery, at the same term in which the judgment or decree was rendered, on
discovering its own error in the la ?, or that the consent of the complainants

to such dismissal was obtained by fraud. Doss v. Tyack, 298.
21. A verdict on an issue to try whether a sale was fraudulent, finding the same to

be fraudulent, will not be set aside on a certificate or affidavit of some of the

jurors, afterwards made, as to what they meant. Ibid.
22. A Chancellor does not need a verdict to inform his conscience, when the answer

denies fraud in the abstract, whilst it admits all the facts and circumstances

necessary to constitute it, in the concrete. Ibid.
23. Releases given by the complainanţs, in the present case, decided to cover the

matters in controversy, and, therefore, to put an end to all claim by them; in-
asmuch as there is no proof that they were obtained by fraud or circuin ven-

tion. Perkins v. Fourniquet, 313.
24. Where a title to land in the State of Coahuila and Texas was obtained in 1833,

by a mother for, and in the name of her daughter, and, in 1836, the father of
the daughter conveyed it away by a deed executed in Louisiana, this deed was

properly set aside by the District Court of Texas. Hoyt v. Hammekin, 346.
25. It was not executed either according to the laws of Louisiana, or those of Coa-

huila and Texas. Ibid.

CHANCERY (Continued.)
26. Two statutes of Mississippi, one passed in 1843, and the other in 1846, provide

that where the charter of a bank shall be declared forfeited, a trustee shall be
appointed to take possession of its effects, and commissioners appointed to

audit accounts against it. Peale v. Phipps, 368.
27. Where these steps had been taken, and the commissioners had refused to allow a

certain account, the Circuit Court of the United States had no right to enter.
tain a bill filed by the creditors to compel the trustee to pay the roiected ac-

count. There was a want of jurisdiction. Ibid.
28. The cases upon this point, examined. lbid.
29. A claim by the trustee, in re-convention, was not a waiver of the exception to

the jurisdiction. Ibid.
30. A will, executed in 1777, which devised certain lands in Maine, to trustees and

their heirs to the use of Richard (the son of the testator) for life, remainder,
for his life in case of forfeiture, to the trustees to preserve contingent remain-
ders; remainder to the sons of Richard, if any, as tenants in common in tail,
with cross remainders ; remainder to Richard's daughter Elizabeth, for life;
remainder to trustees to preserve contingent remainders during her life; ro
mainder to the sons of Elizabeth in tail, — did not vest the legal estate in fee
simple in the trustees. The life estate of Richard, and the contingent remain-.

ders limited thereon, were legal estates. Webster v. Cooper, 489.
31. No duties were imposed on the trustees which could prevent the legal estate in

these lands from vesting in the cestuis que use ; and although such duties might
have been required of them relating to other lands in the devise, yet this cir.
cumstance would not control the construction of the devise as to those lands.

32. The devise to Elizabeth for life, remainder to her sons as tenants in common,

share and share alike, and to the heirs of their bodies, did not give an estate
tail to Elizabeth, under the rule in Shelly's case. But upon her death, her son
(the party to the suit) took as a purchaser, an estate tail in one moiety of the

land, as a tenant in common with his brother. Ibid.
33. One of the conditions of the devise was, that this party, as soon as he should

come into possession of the lands, should take the name of the testator. But
as he had not yet come ito possession, and it was a condition subsequent, of
which only the person to whom the lands were devised over, could take advan-
tage, a non-compliance with it was no defence, in an action brought to recover

possession of the land. Ibid.
34. The son, taking an estate tail at the death of Elizabeth, in 1845, could maintain

& writ of entry, and until that time had no right of possession. Consequently,

.the adverse possession of the occupant only began then. Ibid.
95. A bill in chancery will not lie for the purpose of perpetually enjoining a judg-

ment, upon the ground that there was a false return in serving process upon
one of the defendants. Redress must be sought in the court which gave the

judgment, or in an action against the marshal. Walker v. Robbins, 584.
36. Moreover, the defendant in this case, by his actions, waived all benefit which he

might have derived from the false return; and no defence was made on the
trial at law, impeaching the correctness of the cause of action sued on, and in

such a case, resort cannot be had to equity to supply the omission. lbid.
37. A society called Separatists, emigrated from Germany to the United States.

They were very poor, and one of them, in 1817, purchased land in Ohio, for
which he gave his bond, and took the title to himself. Afterwards, they
adopted two consitutions, one in 1819, and one in 1824, which they signed,
and in 1832 obtained an act of incorporation. The articles of association, or
constitutions of 1819 and 1824, contained a renunciation of individual property.

Goesele v. Bimeler, 590.
38. The heirs of one of the members who signed these conditions, and died in 1827,

cannot maintain a bill of partition. Ibid.
39. From 1817 to 1819, the contract between the members and the person who pur.

chased the property, vested in parol, and was destitute of a consideration. No

legal rights were vested in the members. Ibid.
20. The ancestor of these heirs renounced all right of individual property, when he

signed the articles, and did so upon the consideration that the society would
support him in sickness and in health; and this was deemed by him an ade-
quate compensation for his labor and property, contributed to the common
stock. Ibid.

CHANCERY (Continued.)
41. The principles of the association were, that land and other property were to be

acquired by the members, bu' they were not to be vested with the fee of the
land. Hence, at the death of one of them, no right of property descended to

his heirs. Ibid.
42. There is no legal objection to such a partnership ; nor can it be considered a for.

feiture of individual rights for the community to succeed to his share, because

it was a matter of voluntary contract. llid.
43. Nor do the articles of association constitute a perpetuity. The society exists at

the will of its members, a majority of whom may at any time order a sale of

the property, ang break up the association. lbid.
44. The evidence shows that they are a moral, religious, and industrious people.

45. Under the attachment laws of Maryland, a share in the Baltimore Mexican

Company, which had fitted out an expedition under General Mina, was not,
in 1827, the subject of an attachment under a judgment, whether such share
was held by the garnishee under a power of attorney to collect the proceeds,

or under an equitable assignment to secure a debt. Deacon v. Oliver, 610.
46. The answers of the garnishee to interrogatories filed, were literally correct. He

had not in his hands any "funds, evidences of debt, stocks, certificates of
stock,” belonging to the debtor, nor any acknowledgment by the Mexican

government,” on which an attachment could be laid. lbid.
1. Where a suit was brought against a railroad company, by a person who was in-

jured by a collision, it was correct in the court to instruct the jury, that if the
plaintiff was lawfully on the road, at the time of the collision, and the collision
and consequent injury to him were caused by the gross r.egligence of one of
the servants of the defendants, then and there employed on th road, he was
entitled to recover, notwithstanding the circumstances, that the plaintiff was a
stockholder in the company, riding by invitation of the President, paying no

fare, and not in the usual passenger cars. P. f R. R. R. Co. v. Derby, 468.
2. And also, that the fact that the engineer having the control of the colliding

locomotive, was forbidden to run on that track at the time, and had acted in

disobedience of such orders, was no defence to the action. Ibid.
3. Where a collision takes place between two vessels at sea, which is the result of

inevitable accident, without the negligence or fault of either party, each vessel

must bear its own loss. Steinback v. Rae, 532.
1. Under a policy insuring against the usual perils of the sea, including barratry,

the underwriters are not liable to repay to the insured, damages paid by him
to the owners of another vessel and cargo, suffered in a collision occasioned
by the negligence of the master or mariners of the vessel insured. Gen. M.

Ins. v. Sherwood, 352.
2. A policy cannot be so construed as to insure against all losses directly referable

to the negligence of the master and mariners. But if the loss is caused by &
peril of the sea, the underwriter is responsible, although the master did not

use due care to avoid the perii. Ibid.
3. It is of no consequence whether the date of a promissory note be at the begin.

ning or end of it. Sheppard v. Graves, 505.
4. Where a warehouseman gave a receipt for wheat which he did not receive, and

afterwards the quantity which he actually had was divided amongst the respect-
ive depositors, an action of replevin, brought by the assignee of the fictitious
receipt, could not be maintained when, under it, one of these portions was

seized. Jackson v. Hale, 525.
5. Evidence offered to show that the wheat in question was assigned to the defend-

ant, was objected to by the plaintiff in the replevin ; but such objection was

properly overruled. The plaintiff had shown no title in himself. Ibid.
6. So, also, evidence was admissible to show that the receiver of the fictitious cer-

tificate had never deposited any wheat in the warehouse. Ibid.
7. The defendants in this case were the assignees of the original warehouseman,

and were not responsible, unless it could be shown that wheat was deposited,
which had come into their possession. Ibid.

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