until the freight is paid, and is lost by an un- | convenience of commerce, both as to the shipconditional delivery to the consignee. It is owner and the merchant. suggested in the argument for the appellant, that, as a general rule, maritime liens do not depend on possession of the thing upon which the lien exists; but this proposition cannot be maintained in the courts of admiralty of the United States. And, whatever may be the doctrine in the courts on the continent of Europe, where the civil law is established, it has been decided in this court that the maritime lien for a general average in a case of jettison, and the lien for freight, depend upon the possession of the goods, and arise from the right to retain them until the amount of the lien is paid. Cut ler v. Rae, 7 How. 729; Dupont de Nemours v. Vance, 19 How. 171. In the last-mentioned case, the court, speaking of the lien for general average, and refering to the decision of Cutler v. Rae, on that point, said: "This admits the existence of a lien arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation, which, as is well known, is waived by an authorized delivery without insisting on payment." After these two decisions, both of which were made upon much deliberation, the law upon this subject must be regarded as settled in the courts of the United States, and it is unnecessary to examine the various authorities which have been cited in the argument. But it may be proper to say, that while this court has never regarded its admiralty authority, as restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted, yet it has never claimed the full extent of admi114*] ralty *power which belongs to the courts organized under, and governed altogether by, the principles of the civil law. But courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo should pass into the hands of the consignee before he pays the freight. It is the interest of the shipowner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would be a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty. The consignee, too, in many instances, might desire to see the cargo unladen before he paid the freight, in order to ascertain whether all of the goods mentioned in the bill of lading were on board, and not damaged by the fault of the ship. It is his duty, and not that of the shipowner, to provide a suitable and safe place on shore in which they may be stored; and several days are often consumed in unloading and storing the cargo of a large merchant vessel. And if the cargo cannot be unladen and placed in the warehouse of the consignee, without waiving the lien, it would seriously embarrass the ordinary operations and It is true, that such a delivery, without any condition or qualification annexed, would be a waiver of the lien; because, as we have already said, the lien is but an incident to the possession, with the right to retain. But in cases of the kind above mentioned, it is frequently, perhaps more usually, understood between the parties, that transferring the goods from the ship to the warehouse shall not be regarded as a waiver of the lien, and that the shipowner reserves the right to proceed in rem to enforce it, if the freight is not paid. And if it appears by the evidence that such an understanding did exist between the parties, before or at [*115 the time the cargo was placed in the hands of the consignee, or if such an understanding is plainly to be inferred from the established local usage of the port, a court of admiralty will regard the transaction as a deposit of the goods, for the time, in the warehouse, and not as an absolute delivery; and, on that ground, will consider the shipowner as still constructively in possession, so far as to preserve his lien and his remedy in rem. But in the case before us, there is nothing from which such an inference can be drawn. The goods were delivered, it is admitted, generally, and without any condition or qualification. Upon such a delivery there could be neither actual nor constructive possession remaining in the shipowner; and, consequently, there could be no right of retainer to support his lien. The decree of the Circuit Court, dismissing the libel, must, therefore, be affirmed. BENJ'N RUFFNER et al., The State Bank of Indiana, and The Chicago Railroad Company, Appts., v. NATHANIEL B. HOGG, and NATHANIEL B. HOGG, Appt., υ. BENJ'N RUFFNER et al., The State Bank of Indiana and The Chicago Railroad Company. (See S. C. 1 Black, 115-121.) Usury, what is-payment of larger sum, for credit-parol evidence cannot contradict contract. To constitute usury, there must either be a loan and a taking of usurious interest, or the taking of more than legal interest for the forbearance of a debt or sum of money due. If A proposes to sell to B a tract of land for $10,000 in cash, or for $20,000 payable in ten annual instalments, and if B prefers to pay the larger sum to gain time, the contract cannot be called usurious. what they "understood The hearsay testimony of witnesses, who relate from conversations with the parties, cannot be received to contradict the written contract of the parties. NOTE. Usury in deferred payments of purchase money-see note, 27 L. R. A. 565. Argued Dec. 10, 1861. APPEALS from the Decided Dec. 23, 1861. cut out of the United States for District of Indiana. This action was commenced in the court below by Nathaniel B. Hogg, upon nineteen promissory notes for $2,000 each, secured by three mortgages, asking a decree against the defendant Ruffner, the maker of the notes, and that in default of payment by him the mortgaged premises be sold. The notes were given to John W. Brice and James L. Birkey, and by them transferred to complainant and one Solomon Sturges. Brice and Birkey also transferred to complainant and Sturges their interest under the mortgages. Several other parties defendant were added, as having, or claiming to have, interests in the mortgaged premises. Sturges was also made a defendant, and he came in and filed a stipulation waiving service and, in effect, agreeing that his right should be determined by the present suit. Ruffner defended on the ground of usury. The circuit court found that the nine notes last due were void for usury, but that the others were valid, and entered a decree passing upon the titles of the defendants in the mortgaged lands, and providing for a sale. The complainant and Sturges appealed, because the decree decided part of the notes to be usurious. The defendants appealed, because of the application of the usury to the last notes instead of pro rata, and because the mortgaged property was directed "to be sold without re lief, to pay the simple contract debt, created by the payments of Hogg and Sturges, of prior liens on the mortgaged premises." | and it will be, nevertheless, contrary to the statute for the vendor to demand or receive more than legal interest for the forbearance of such debt, as in the case of Crawford v. Johnson, 11 Ind. 258, where separate notes were taken for two per cent interest, in addition to the legal interest, on the sum due for the purchase money of land. But it is manifest that if A propose to sell to B a tract of land for $10,000 in cash, or for $20,000 payable in ten annual *in- [*119 stalments, and if B prefers to pay the larger sum to gain time, the contract cannot be called usurious. A vendor may prefer $100 in hand to double the sum in expectancy, and a purchaser may prefer the greater price with the longer credit; and one who will not distinguish between things that differ, may say, with apparent truth, that B pays a hundred per cent for forbearance, and may assert that such a contract is usurious; but whatever truth there may be in the premises, the conclusion is manifestly erroneous. Such a contract has none of the characteristics of usury; it is not for the loan of money, or forbearance of a debt. Does this case come within this category? We are of opinion that it does. The mortgage and notes in question were given in execution of a contract between the parties, dated, the 20th of April, 1855. This contract is in writing, and signed by the parties. It would be tedious and unprofitable to enumerate its various covenants; but the chief subject of it is a sale of land by Brice and Birkey to Ruffner for the sum of $38,000, in ten annual instalments, the sale to include, also, certain personal property. There is no proof that the recitals of this contract are untrue, or The case is further stated by the court. Messrs. Ewing and H. H. Hunter, for that the consideration of the notes and mortcomplainant. Messrs. J. B. Stewart, Stevens, E. M. Stanton, and P. Phillips, for respondents. | Mr. Justice Grier delivered the opinion of the court: If the exception, taken to the decree of the court below by the complainant, be sustained, it will be unnecessary to notice those taken by the respondents. Was the contract of Brice and Birkey with Ruffner, which shows the consideration of the mortgage and notes assigned to the complainants, usurious? The statute of Indiana declares, that "the rate of interest upon the loan or for the forbearance of any money, etc., shall be at the rate of six" per cent; but "if a greater rate of interest shall be contracted for, received, or reserved, the contract shall not, therefore, be void: "the plaintiff shall recover only his principal, without interest," and the "defendant shall recover costs." To constitute usury, there must either be a loan and a taking of usurious interest, or the taking of more than legal interest for the forbearance of a debt or sum of money due. This statute does not profess to enlarge the common law definition of the term, while it aims to include the common devices resorted to by usurers to evade its penalties. The original contract by which a debt is created may be for the purchase and sale of land gage in question was other than is there stated. These parties had formed a partnership in February, 1854, "for dealing in land, farming," etc., etc. Brice and Birkey advanced money, and had, each, an interest of one third in the lands whose title was in the name of Ruffner. In October of the same year this partnership was dissolved, and Ruffner afterwards agreed to pay certain sums of money to the other parties for a release of their interest in the land, and gave them his obligations. Afterwards, in February, 1855, in order to extinguish these obligations, which he was unable to meet, he agreed to reconvey to Brice and Birkey certain tracts of the land. In the spring of 1855 they made arrangements to take possession of these lands, with their tenants, stock, farming utensils, etc., etc. Ruffner then refused to let them have possession. Finding they could not obtain possession without great and ruinous delay, a proposition was made to sell or re- [*120 lease all their interest in the lands of the firm, if Ruffner would pay in cash the amount of money advanced by them. After some negotiations and calculations, this amount was ascertained to be about $20,000. They professed a willingness to receive this amount, if paid in cash, or security given that it should be actually paid in six months. A conditional deed was proposed, by which the title was to become absolute in case payment was made on the day. But counsel advised that this would be construed a mortgage, in whatever form of words it might be drawn. Ruffner being unable to furnish such security as was required, this agreement was not signed or executed. Proposals were then made to purchase for a larger consideration, to include the farming stock, etc., owned by Brice and Birkey, on a credit running ten years. On these terms they demanded $40,000, and Ruffner offered $36,000, and finally the amount of $38,000 was agreed upon, as set forth in the contract referred to. tioners, would be a nullity, being prohibited by the 15th section of the act of 1851. Argued Dec. 6, 1861. Decided Dec. 23, 1861. PPEAL from the District Court of the United States for the Northern District of Cali fornia. Covilland and others filed their petition before the Board of Land Commissioners of California, asking confirmation of two parcels of land, the title to which they derived from Sut The point on which the case turned is stated by the court. Messrs. Edward Bates, Atty. Gen., and E. M. Stanton, for appellant. Mr. J. J. Crittenden for appellee. Now, the hearsay testimony of witnesses, who relate what they "understood" from conversations with the parties, or may have misunder-ter. The claim was confirmed by the Commisstood to be the contract between them, and their sioners, and the United States district court, on inference, because the parties had a "settle appeal, affirmed this decree of confirmation. The ment," that, therefore, the first terms proposed, United States appealed to this court. but not accepted, amounted to the ascertainment of a debt due, cannot be received to contradict the written contract of the parties and the testimony of witnesses cognizant of the whole anNor is tecedent history of the transaction. there any irreconcilable discrepancy between their impressions or "understandings," and the written agreements and other testimony. They construed the "settlement" of the difficulties. which had long existed between the parties, to mean a balance of accounts of money due from one party to the other and, consequently, inferred that the increased amount of the securities was for usurious interest for the forbearance of its payment. This was but the usual error of arriving at a false conclusion by the use of equivocal or ambiguous terms. 121*] *The decree of the court below is, therefore, erroneous, in so far as it is affected by the assumption that the contract was usurious. The decrec of the Circuit Court is reversed, and record remitted, with directions to reform their decree in conformity with this opinion, and have such further proceeding as to justice and equity may appertain. THE UNITED STATES, Appt., v. CHAS. COVILLAND et al. (See S C. 1 Black, 339-342.) Mr. Justice Catron delivered the opinion of the court: Covilland and four others petitioned to have confirmed to them two tracts of land, as joint owners, assuming to derive title from John A. His claim was confirmed for eleven Sutter. leagues by the decision of this court, in 1858, and which judgment is reported in 21 How. 170. It appeared, in that case, that Sutter had assigned to others a great portion of his original grant; nevertheless, the suit against the United States seeking a confirmation was prosecuted in his name, regardless of that fact. That a confirmation in the name of the original grantee, devesting the legal title of the United States, is binding on the government and on the assignees, is the established doctrine of this court. It was so held in the case of U. S. v. Percheman, 7 Pet. 56, which decision has been adhered to, and which was recognized in U. S. v. Sutter, 21 How. 170, 182, of which this case is, in fact, a part. To this course of decision the courts adjudicating titles to lands situate in California are requested to conform by the 11th section of the act of March 3d, 1851, ch. 41 (9 stat. 631); nor can their decisions affect, injuriously, the rights of assignees. The 15th section of the act so provides. *The decree made by this court in [*342 Confirmation of Mexican title to original gran- 1858, in favor of Sutter, remanded the protee-intervention by assignees second pat-ceeding to the Surveyor-General's office in Calient, when invalid under act of 1851. A confirmation in the name of the original grantee of Mexican land devesting the legal title of the United States, is binding on the government and on the assignees. fornia, to have a survey made of the land con- We are not aware that the survey has been Where the decree made by this court in favor of Sutter, remanded the proceeding to the SurveyorGeneral's office in California, to have a survey made of the land, conformably to such decree, to the end of having a patent founded on the survey, devest-executed; but when it is finally completed, and ing the title of the United States, in executing the survey. Sutter's assignees may intervene and protect their rights. When the survey is finally completed, and a patent issued to Sutter, his assignees may intervene and protect their rights against him in the courts. But the extraordinary tribunals, proceeding by force of the act of 1851, cannot order a second patent to issue for a portion of Sutter's grant. Such judgment could have no effect against the government, and as between Sutter and the peti a patent issued to Sutter, his assignees can would be a nullity, being prohibited by the 15th section of the act of 1851. It is ordered that the judgment be reversed, and the petition be dismissed. 54*] *THE TRUSTEES OF THE WABASH & ERIE CANAL CO., Appts., v. JOSEPH D. BEERS. (See S. C. 1 Black, 54, 55.) Final decree, what is. Where the circuit court decreed that the defendants pay into the clerk's office, on or before November 1, the sum found due; "or, in default thereof, the court will, at the next term of this court, ap point a receiver," the decree is final. Motion to dismiss denied. If a party yields something for the sake of a settlement, with a full knowledge of the circumstances, he cannot affirm the settlement and afterwards maintain a suit for that which he voluntarily surrendered. Where there is no evidence of any unfairness or any error, except in favor of the complainant, the decree of the circuit court must be affirmed. Argued Dec. 19, 1861. Decided Jan. 6, 1862. PPEAL from the Circuit Court of the Unit A ed States for the District of New Jersey The case is fully stated by the court. Messrs. S. B. Ransom and Reverdy Johnson, for appellant: The account of the business and the valuation of the assets of the company taken and made by the agents of the company, and upon which the settlement with the complainant was made, although acquiesced in and consentArgued Jan. 3, 1862. Decided Jan. 6, 1862. ed to by the complainant, is only prima facie N CONSIDERATION of the motion to dis-evidence of their correctness; and the complainI miss this case, filed on the 16th of November last, by Mr. Gillet, and of the argument of counsel thereupon had, as well against as in support thereof, it is now here ordered by the court that said motion be, and the same is hereby overruled. Mr. Chief Justice Taney.-That decree is final. It is decisive of the case made upon the record. It is positive, and not alternative. It leaves no question of right between the parties open for future adjudication. The decree orders the money to be brought into court within a limited time, and the court warns the defendants that if they fail or make default, a particular measure will be taken to compel obedience. There is no want of finality here. Motion to dismiss is denied. v. JOHN R. THOMPSON et al., Trustees of the N. Brunswick Steamboat & Canal Transportation Company. ant is not estopped by his acquiescence sent thereto, from showing them to be erroneous or false and fraudulent. He may surcharge, by alleging and proving omissions in the accounts, or he may falsify, by showing errors in some of the items stated in it. It may be impeached by proof of unfairness, or mistake in law or in fact. It concludes nothing in relation to items stated in it. Perkins v. Hart, 11 Wheat. 256; Chappedelaine v. Dechenaux, 4 Cranch, 306; 1 Bald. C. C. 418; Kelsey v. Hobby, 16 Pet. 269. If false assurances were made, they were a fraud upon the complainant, which vitiates the account rendered, and entitles him to a new account and a new valuation of his stock. 1 Story, Eq. Jur. § 200; Atwood v. Small, 6 Cl. & F. 232, 233; Camp v. Pulver, 5 Barb. 91; Sandford v. Handy, 23 Wend. 260; Willson v. Foree, 6 Johns. 111; Snyder v. Findlay, Coxe, 78; Gilbert v. Hoffman, 2 Watts, 66; Hazard v. Irwin, 18 Pick. 95; Boyce v. Grundy, 3 Pet. 210; Smith v. Richards, 13 Pet. 26. But even admitting that the defendants, when they assured the complainant that the abstract was just and true, and contained a general but fair statement of the business and operations of the Company, and a just and honest account of all the moneys that had been received, and Fraud cannot be presumed-must be proved-all the disbursements that had been made dursettled account, how far conclusive-conces-ing the period of time therein embraced, did not, sions in, when binding. (See S. C. 1 Black, 80-95.) Fraud cannot be presumed or inferred without proof, in a court of equity, any more than in a court of law; and in both, the rule is, that he who makes the charge must prove it. He who seeks equity should do equity. A settled account is only prima facie evidence of its correctness; it may be impeached by proof of unfairness, or mistake in law or fact; and, if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. When there is no unfairness, and all the facts are equally known to both sides, an adjustment by them is final and conclusive. NOTE. What is a final decree or judgment of a state or other court, from which appeal lies see notes, 5 L. ed. U. S. 302; 17 C. C. A. 238; 28 C. C. A. 482; 32 C. C. A. 475. NOTE.--When an account is impeachable for fraud, mistake, error, omission, accident, usurious 463. as they allege in their answer, know anything Smith v. Richards, 13 Pet. 26. The plaintiff took his own course to get at the value of his stock. He cannot allege that he was deceived or misled; he had already charged the defendants with deceit and fraud; he was on his guard and at arm's length. Such a settlement will not be disturbed without the clearest evidence of fraud or mistake. Stearns v. Page, 7 How. 819; Baker v. Bid charges-see note to Perkins v. Hart, 6 L. ed. U. S. dle, Bald. C. C. 418; Drew v. Power, 1 Sch. & Lef. 182; Johnson v. Curtis, 3 Bro. Ch. 266; Wilde v. Jenkins, 4 Paige, 481; Lockwood v. Thorne, 11 N. Y. 170; Philips v. Belden, 2 Edw. Ch. 1; Chappedelaine v. Dechenaux, 4 Cranch, 306; Story, Eq. Jur. §§ 523-529; Beame's Pleas, 227; Small v. Boudinot, 1 Stockt. Ch. 381. The court will not open voluminous accounts, especially if the party allows an unreasonable time to elapse. 1 Story, Eq. § 529. Mr. Justice Clifford delivered the opinion of the court: This was a bill in equity, and the case comes before the court on appeal from a decree of the circuit court of the United States for the District of New Jersey, dismissing the bill of complaint. It was filed on the 18th day of May, 1852, and was brought by the appellant. Some brief reference to the introductory allegations of the bill of complaint, and to the transactions out of which the controversy has arisen, is indispensable, in order that the foundation of the claim made by the complainant may be fully understood. It appears that the New Brunswick Steamboat & Canal Transportation Company, usually called the New Brunswick Company, was incorporated on 18th day of January, 1831, 86*] *and that the charter expired, by its own limitation, on the 18th day of January, 1852. Shortly after the charter was granted the Company was duly organized, with a capital of $25,000. Seven and two-thirds shares of the stock were taken by the appellant, and he was elected secretary of the Company. They purchased a steamboat in 1831, which was employed in the transportation business between New Brunswick and the city of New York; and they also purchased a sloop, which was employed in carrying wood for the steamboat, and was also engaged in the transportation of merchandise on the Raritan river. Two other Companies were also created by the legislature of the state of New Jersey, and authorized to engage in the transportation business. One was called the Delaware & Raritan Canal Company, incorporated in 1830; and the other the Camden & Amboy Railroad Company, incorporated contemporaneously with the New Brunswick Company. Those Companies were united in 1831, and were subsequently known as the joint Companies. Most or all of the respondents were largely interested in those Companies, and in 1834 they purchased about four fifths of the stock of the New Brunswick Company; but the complainant still retained his shares and his position as secretary of the Company and clerk on the steamboat. Whatever might have been the object of the purchasers, it is evident that the transfer of the shares had the effect to impart new energy and efficiency to the management of the company, for they increased the capital stock to $50,000, making the par value of the shares $250, and, during the early part of the year 1835, made an arrangement with the joint Companies for transporting freight through the canal and over the railroad between New York and Philadelphia, and other intermediate places on the route. Under this arrangement they also built and procured canal boats and barges, and ran [them on the Delaware and Raritan rivers and through Staten Island Sound to the City of New York, operating them by means of steamtugs furnished by the joint Companies. They also did a large business on the Camden & Amboy railroad, using the locomotives, cars, and steamboat of the railroad Company for [*87 that purpose. Throughout this period they also continued to operate their steamboat line between New Brunswick and New York, and in 1837 they engaged in the coal business, purchasing and transporting coal to market, as is more fully set forth in the pleadings. Large profits were made by the Company under these various arrangements; but they also incurred very large expenses, and the complainant became dissatisfied with the management of the Company. Failing to get any redress for his supposed grievances, he, on the 25th day of March, 1847, filed a bill in equity in the chancery court of the state against three of the present respondents, charging them, as directors of the Company, with divers frauds and breaches of trust in the management of its affairs, and praying for an account of all the business of the Company. To that bill of complaint the respondents in the suit made answer, denying the charges, and exhibiting what they alleged to be the actual circumstances of the cases. Pending that suit, the complainant, with two other persons, purchased four additional shares of the stock of the Company, and the same were held in the name of one of those persons for the equal benefit of the purchasers at the time the suit was brought. With these explanations as to the origin of this controversy, we will proceed to state the foundation of the claim made by the complainant. Among other things, he alleged, that after he had proceeded to take testimony in that suit in support of his bill of complaint, propositions of compromise were made in behalf of the defendants, and that the propositions so made were entertained by him in the spirit of conciliation. Those propositions of compromise, he alleged, were made to him through R. F. Stockton, one of the respondents in this suit, who was the agent of the company and of these respondents; and he also alleged, that it was agreed and arranged that the suit should be compromised and settled in the manner and upon the basis set forth in the present bill of complaint. Both parties agree that the suit was settled in consequence of that arrangement, and that the stock of the complainant, including the four shares purchased during the pendency of that suit, was transferred to the com- [*88 pany; but they differ, in some respects, as to the terms of the agreement providing for the transfer, and still more widely as to the circumstances under which the transfer was made. As alleged in the bill of complaint, R. F. Stockton applied to the complainant, about the 2d day of September, 1847, to ascertain whether there could not be an amicable settlement of the matters involved in that suit, and that the conference resulted in an agreement that the Company and the defendants in that suit should purchase his stock in the Company, and pay him therefor such price or sum as, upon a fair examination of the affairs of the Company, and a proper and fair estimate of the money, prop |