Now, the special verdict finds that the offense in this case was committed upon the "Spray," lying in waters adjoining the State of Connecticut, between Norwalk Harbor and Westchester County, in New York, at a place five miles eastward of Lyon's Point, and a mile and a half from the Connecticut shore. Whether this place thus described is out of the jurisdiction of a State or not is not found, and is, of course, necessarily left to the court to determine. The learned judge of the district court, sitting in the circuit with the presiding judge, in a very carefully considered examination of the question, come to the conclusion that the place where the offense was committed was within the jurisdiction of New York; and it appears that two of the eminent judges of the highest court of the State of New York entertained different opinions on this question. Manly v. People, 7 N. Y., 295.

We have not referred to this boundary of New York for the purpose of determining it, or even expressing an opinion upon it, but for the purpose of saying that the boundary of a State, when a material fact in the determination of the extent of the jurisdiction of a court, is not a simple question of law. The description of a boundary may be a matter of construction, which belongs to the court; but the application of the evidence in the ascertainment of it, as thus described and interpreted, with a view to its location and settlement, belongs to the jury. All the testimony bearing upon this question, 488*] whether of maps, surveys, practical location, and the like, should be submitted to them under proper instructions to find the fact. We do not think the special verdict in this case furnishes ground for the court to determine whether or not the offense was committed out of the jurisdiction of a State, and shall direct that it be certified to the Circuit Court, to set aside the special verdict, and grant a new trial.

Ex parte, In the Matter of Thomas B. VALENTINE et al., Assignees and Legal Representatives of Juan Miranda.

(See S. C. 1 Black, 501-503.)
Mandamus, when denied.

Motion for a mandamus will not be granted to compel the district court to allow a claimant to Intervene in a proceeding for confirmation of a Mexican land claim.

Argued Mar. 21, 1862. Decided Mar. 24, 1862.

N PETITION for a writ of mandamus on

nia, to allow the petitioners to intervene in the case of Ellen C. White against the United States, pending in that court, in accordance with the decree and mandate of this court in that case.

Messrs. Black and Green, in support of the motion.

Messrs. Bates, Atty. Gen., and Cushing, in opposition thereto.

Mr. Justice Grier delivered the opinion of the court:

The motion for a mandamus in this case is founded on a mistaken appre- [*502 hension of the judgment of this court as it is reported in U. S. v. White, 23 How., 249.

Ortega had married the daughter of Miranda; they lived as one family, and entered into possession of the land claimed. Ortega's title purported to be founded on a petition to Governor Alvarado, dated 12th June, 1840; a reference report and marginal decree signed by Alvarado, 10th of August, 1840, "which was returned to him to serve as a security during the other operations indicated." It was never completed by a final grant, and was not to be found among the archives, but its execution was proved by Alvarado himself. Miranda, in 1844, petitioned for a grant of the same land, alleging that he had been in possession of the land for more than four years. This informé was in the usual form, and is found among the archives. The court being divided in opinion as to the authenticity of the Ortega title (and a majority expressing a doubt, at first decided to send the record back to the District Court, to have the conflicting claims of the father and son-in-law settled by a proceeding under the 13th section of the Act of 1851. But our attention was afterwards drawn to the fact that the proceeding, under the proviso in this section, was intended only for cases where both parties claimed under а confirmed Mexican grant by derivative titles, and as Ortega and Miranda claimed under several and distinct titles, the case did not come within the provisions of the 13th section. The court then reversed the decree of the district court, and not being fully satisfied on the evidence as to the genuineness of Ortega's papers, sent the case back for further examination. There was no order that a stranger to the record should be allowed to interplead and set up another grant, as a reason why the claimant's title should not be confirmed, for it appears from the opinion of the court that they objected to the proceeding because the Miranda grant had been used to combat that of Ortega in this proceeding. The first decree did not order the court below to allow the claimants under Miranda to interplead in this suit; and if it had done so, it was wholly annulled and set aside by the order and decree afterwards made on the 1st of May, 1860. It was like a judgment in a common law *case, where a judgment is reversed and [*503 a venire de novo ordered; and the reason given

This motion was for a mandamus, command

NOTE.-Mandamus, when will issue-see note to McCluny v. Silliman, 4 L. ed. U. S. 263.

not be trammeled in their future consideration of the case on all of its merits."

The motion for a mandamus is, therefore, refused.

GEORGE J. FOSTER, Appt.,

v.

WILLIAM W. GODDARD;

and WILLIAM W. GODDARD, Appt.,

บ.

GEORGE J. FOSTER.

(See S. C. 1 Black, 506-518.)

Exceptions to master's report, should state his finding what the term "actual expenses” of business, includes in equity cases the proof and allegations must agree.

All that is necessary is an exception to a master's

report is, that it should distinctly point out the finding and conclusion of the master, which it

seeks to reverse.

Then it brings up for examination all questions of fact and law arising upon the report of the master relative to that subject.

Under an agreement to pay one a share of the profits of a business in trade, after deducting the

actual expenses that may appertain to the goods themselves, charges for taxes, clerk hire and advertising are as much a part of the actual expenses, appertaining to the goods themselves, as storage, commission or insurance.

In equity proceedings the proofs and allegation must agree. A party can no more succeed upon a case proved, but not alleged, than upon a case alleged, but not proved.

Argued Mar 5, 1862. Decided Mar. 24, 1862.
C United States for the D
ROSS appeals from the Circuit Court of the

setts.

The case appears in the opinion of the court. Messrs. S. Bartlett and Sohier & Welch,

for Foster:

It may be of importance to ask the court to apply to the master's report the familiar doctrine that, so far as the same determines the

facts in the case, it is to stand, unless it can be assailed on grounds sufficient to set aside a verdict; since otherwise but little relief would result to a court from committing a cause to a master; and further, to submit to the court whether the exceptions filed in this case by the respondents are sufficient, amounting as they do to something in the nature of general demurrers, instead of pointing out the supposed error of the master in his finding upon each fact, and thus enabling him and the court to correct the error.

As to the conclusive character of the master's report, see Mason v. Crosby, 3 Wood. & M.,

258-269; Donnell v. Columbian Ins. Co., 2

touching the form and effect of exceptions to a master's report. The case involves nothing else that can be of interest in any other case. We have considered it with all the care which the magnitude of the amounts involved, and the fulness of preparation, and ability with which it has been presented, demand at our hands.

Upon some of the points pressed in the argument at bar, we have found difficulty in reaching conclusions satisfactory to ourselves, and such as we could all unite in. In the end, we have been able to do so.

We adopt the analysis of the case presented in the opening brief of the counsel of the complainants. It has the double merit of brevity and extreme clearness.

of two several contracts, bearing date, respec"The bill alleges the execution by the parties tively, June 24, 1843, and May 7, 1849.

"By the first of these, complainant was to proceed to Varparaiso, remain there five years, and devote himself exclusively to the transaction of respondent's business, for which he was to receive, at the end of said five years, a portion of the net profits. By the second contract the complainant was to proceed to the west coast of South America, and devote his time to the management of respondent's business in those parts, and also in Mexico and California, portion of the profits of the bn line a for which he was to receive, on his return, a

trade which complainant should have conducted to completion. This agreement also provided that complainant might terminate the contract at any time, by giving so much notice that any Voyage respondent might have commenced preshould receive the benefit of complainant's servvious to the *receipt of such notice [*508 The prayer ices to its final accomplishment. was that an account might be taken, and respondent decreed to pay complainant what was

due.

"On the 3d of August, 1857, the respondent filed his answer, in which he admits the execution of said contracts, the rendition of the services by said Foster, and the possession of books of account, from which the amount, if any, due said Foster, can be ascertained; alleges reasons for his delay in making up said accounts, and

avers that the last mentioned contract determined on 31st of December, 1850.

"On the 13th of August the complainant filed an amended bill, setting forth more particularly the mode in which the business was conduct

Mr. C. B. Goodrich, for Goddard.

Mr. Justice Swayne delivered the opinion

of the court:

These are cross appeals of the same cause in equity. Foster is the complainant, and Goddard the respondent. The record is voluminous. The questions presented for our consideration are questions of fact. No legal question arises in the case, with the exception of a single point

NOTE. What particularity in exceptions is necessary in order to review in appellate court. General exception or objection, when not sufficient

see note to Moore v. B'k of Metropolis, 10 L. ed. U.

S. 172.

"To this respondent filed an answer on the 4th of September, 1857. To this the general replication was filed, and the cause, by con

sent, was sent to a master to take an account, 1858, the complainant, by leave of the court, On the 8th May, with special instructions. withdrew his replication, and filed another amendment, alleging an agreement between the parties, that the second voyage of the ship Crusader should be taken and deemed within the filed an answer denying the allegation. The said first agreement. To this the respondent general replication was then filed, and the cause

was then committed to the same master, with instructions similar to those formerly given.

to which the respondent alleged ten exceptions. "The master made his report June 2d, 1858,

"The cause came on for hearing before the Circuit Court for the first circuit, at the October Term, 1858. The learned judge, by his decree, sustained the first and tenth of the exceptions, and overruled the rest, and ordered the master's report to be reformed accordingly, which was done.

"From this decree the complainant and the ⚫ respondent severally appealed."

We have considered all these exceptions with care. The argument at bar was confined chief509*] ly to the first, second, third and tenth. The complainant objects to the action of the court touching the first and tenth, which were sustained. The defendant objects, because the second and third were overruled. In regard to the fourth, fifth, sixth, seventh, eighth and ninth exceptions, it is sufficient to remark, that we see no reason to doubt the correctness of the master's findings to which they relate. In this we concur with the court below. They were not pressed by the defendant's counsel in the argument at bar. We deem it unnecessary to discuss the evidence, or the legal views by which the master's conclusions are sustained. Before proceeding to consider the four remaining exceptions, we deem it proper to advert to an objection made to their form by the counsel for the complainant. It is said that such an exception is in the nature of a special demurrer, and that these are not so full and specific that the court can consider them.

Such is not the rule of this court. All that is necessary is, that the exception should distinctly point out the finding and conclusion of the master which it seeks to reverse. Having done so, it brings up for examination all questions of fact and of law arising upon the report of the master relative to that subject. The exceptions in this case are sufficiently full. They are in accordance with the experience of each member of the court in the administration of equity jurisprudence elsewhere.

We come now to the consideration of the exceptions which have been specially named.

"Second exception: For that the said master has erroneously charged this respondent with the sum of $1,789.89, the amount of a loss made in the prosecution of the business aforesaid, by a sale of goods to the New England Worsted Company, for which they have not paid, but refuse to pay."

The master's report, touching this subject, is as follows:

"The Company were charged, on the books of Goddard, with the sum of $2,173.04, on the balance of an account due for wool; but the amount due was in dispute between them. In 1850 or 1851 the Company tendered in pay510*] ment about $1,500, *which Goddard declined to receive. Nothing further was done by either party until January, 1857, after the claim had been outlawed three years, when the Company offered the sum of $1,789.89, but Mr. Goddard refused to receive it, and also declined to permit Foster to receive his proportion of that sum.

"It is contended by the respondent that he had a right to conduct his own business in his own way, being responsible to Foster only for any want of good faith, and that he was neither bound to accept a sum less than what he believed to be due, nor to institute a suit to re

cover what he claimed; and that if any loss has thereby occurred, it is properly chargeable to the business.

"The management of the business, including the collection of the accounts, was under the absolute control of Goddard, and in conducting it he was responsible, I think, only for the exercise of good faith and ordinary diligence. He was not bound to accept the sum, less than what he believed to be due; and if he had instituted a suit to recover the full amount, Foster would have, undoubtedly, been bound by the result. But was he at liberty to do neither? As between parties situated as were these, the authorized duty to collect being vested solely in one, and the amount of the compensation of the other depending, in a measure, upon the manner in which that duty should be performed, was it reasonable prudence or diligence for Mr. Goddard to decline either to receive what the debtor offered to pay, or to enforce the payment of what he himself claimed to be due? It is well settled, that if executors or trustees allow a debt against a solvent debtor to become outlawed, they are chargeable with the amount."

There is no complaint that the master has misapprehended the facts or stated them incorrectly. We are entirely satisfied with the views he has expressed and the conclusion at which he arrived.

"Third exception: For that the said master has allowed to the complainant, under the contract of June 24th, 1843, one tenth of the profits made by this respondent in the construction and subsequent sale of a vessel commonly called The Valdivia, *which vessel was [*511 not employed in, nor put into, the business of this respondent, carried on under the contract aforesaid."

Upon this subject the master reported:

"This was a new ship, built by Mr. Ewell, under a contract made by him with Mr. Goddard, was launched on the 15th of October, 1846, and was sold by Mr. Goddard to the United States Government the 7th December, 1846, at a profit. The validity of this claim depends upon the construction to be given to following clause in the agreement of 1843:

'And furthermore, said Goddard has the right of purchasing, selling and chartering the vessels designed for the trade, at his option, the loss or profit attendant thereon to be charged or credited in the general account. It is also understood that said Foster's interest of one tenth is liable to the full extent for all the risks and casualties in the business, attendant upon the goods and vessels.'

"This vessel was never actually employed in the business of this trade. On the other hand, there is evidence tending to prove that she was originally contracted for by Mr. Goddard, was built and was designed for this trade; that Mr. Goddard had engaged a part of her outward cargo; that these facts were communicated by him to Mr. Foster; and that, under instructions from him, Mr. Foster had procured a portion of her first return cargo. She was sold (so far as the evidence shows), however, before any cargo had been laden on board of her at Boston.

"March 17th, 1846, Goddard wrote to Foster: 'I have contracted for a new ship of 550

which was not sought to be recovered by the complainant in his original or amended bill, which vessel and cargoes, and the profits resulting therefrom during the said voyage, were not embraced in the contract of May 7th, 1849, nor by any contract or agreement made by the respondent with the complainant, but were solely and exclusively at the profit and loss of the respondent."

The provisions of the contract of 1849, to be considered in connection with this exception, are as follows:

"That said Foster engages to proceed at once to the west coast of South America, and that he will devote his whole time in those parts, as also in Mexico and California, exclusively to the management of all said Goddard's business in those countries, such as the sale and 515] purchase of merchandise, and any *other property; collecting freight moneys; procuring freights and consignments of goods; eliciting orders for the purchase and shipment of property, investing money; drawing and negotiating bills of exchange, and forwarding all the information that can be obtained respecting the trade; in fine, to transact any and all business that may be required of him by said Goddard, in accordance with his instructions and best interests, which he is also to care for, and protect from impositions, unjust charges, and also extravagant expenditures of the ship masters, to the best of his ability.

"In consideration for which, said Goddard engages that said Foster shall, on his return, be entitled to one fourth part of the net profits of his business in that trade that he (said Foster) shall have conducted to completion, after deducting, &c.

"It is understood that said Foster is to leave in the hands of said Goddard, bearing interest, what funds he may have-less two thousand dollars, to be paid him before leaving this country-and that neither the same nor any portion of his profits shall be abstracted, until he shall see fit to withdraw from the present arrangement, which he is at liberty to do at any time, by giving said Goddard so much notice that any voyage he may have commenced previous to receipt of such advice shall receive the full benefit of all said Foster's services to its final accomplishment, and not otherwise. It is also understood that said Goddard has the right to annul this agreement whenever he may choose to do so; and furthermore, that said Foster is liable to the full extent of his interest and means for all the losses that may be made in this business, as also for all the risks and casualties attendant thereon."

It is not material to inquire whether this agreement made the parties copartners. It provided a definite mode of terminating the agreement by Foster. Pursuant to that provision, Foster, on the 22d of February, 1850, addressed a letter to Goddard, giving him notice that he proposed to join the house of Alsop & Co., of Valparaiso, on the 1st of January following, and on the day preceding to terminate the agreement between Goddard and himself. In that letter he said:

"After our long and satisfactory 516*] connection together, I must say that I leave it with many regrets; and I doubt not but the feeling is mutual. The truth is, how

ever, that the connection, to a certain extent, will still exist. But, by the articles of this house, no active partner can have any interest out of the establishment, and they are bound down in the most particular manner."

The letter, it seems, was received by God. dard about the 1st of April, 1850. On the 13th of that month he replied in a letter to Foster, "I am very glad to learn your decision to join the house, it being what I would have advised for your own interest."

In Foster's reply of the 29th of May, 1850, he says:

*

"I did not expect you would be able to say whether you intended sending Mr. Erving immediately or not. Be that as it may, you may rely with safety upon my exertions and interest in your favor as much as ever, and also as if you had an agent upon the spot." On the 1st of January, 1851, Foster, according to the notice given by his letter of the 22d of February, 1850, entered the house of Alsop & Co. From that time new relations subsisted between him and Goddard. He ceased to be bound or able to "devote his whole time in those parts, as also in Mexico and California, exclusively to the management of said Goddard's business in those countries, such as," &c (see contract).

All the requirements of the contract as to Foster's services were the consideration of Goddard's agreement as to Foster's compensation. After the 1st of January, 1851, Foster could not, as an honest man, without the consent of Alsop & Co. (which is not shown), have "any interest out of the establishment." According to the notice *given by Foster, and ac- [*517 cepted by Goddard, the contract between them was to terminate on the 31st of December, 1850. The complainant's bill avers that it did then terminate.

"And your orator further showeth that the said copartnership business was forthwith entered upon and conducted by your said orator and the said Goddard until the thirty-first day of December, A. D., one thousand eight hundred and fifty, when the said agreement was terminated by the said orator's giving due notice to the said Goddard in the manner provided for in and by said agreement."

She

The Harriet Erving sailed from Boston for Valparaiso upon the voyage in question on the 21st of August, 1850, more than four months after Goddard received Foster's notice. arrived at Valparaiso on the 8th of December, 1850; sailed for Coquimbo on the 27th of the same month; for Talcuhano on the 4th of January, 1851; and in the same month for Boston, where she arrived on the 7th of April, 1851. The new agent of Goddard arrived at Valparaiso about the 1st of November, 1851. The selling of The Harriet Erving's outward cargo commenced soon after her arrival at Valparaiso, and was continued down to June, 1853. entire amount of the net proceeds was $205,620.74. All the sales were made by Alsop & Co., who received commissions amounting in the aggregate to $9,736.26. Nearly one half of the cargo in value was sold before Foster entered the house of Alsop & Co. Upon that part which was sold after that time, he was entitled to a share of the commissions, as a member of that firm. Before Foster entered the

The