Dennistoun v. Stewart. 17 H.

life of a prisoner is in jeopardy cannot be allowed for the purpose of eluding the payment of just debts.

It is unnecessary that a copy of the protest should be included in the notice to the drawer and indorsers. The object of notice is to inform the party to whom it is sent that payment has been refused by the maker, and that he is held liable. Hence such a description of the note as will give sufficient information to identify it, is all that is necessary. What was said by Mr. Justice Story, in delivering the opinion of this court, in Mills v. The Bank of the United States, with regard to variances and mistakes in notices, will equally apply to protests: "It cannot be for a moment maintained that every variance, however immaterial, is fatal. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility."

In the case before us, the protest had an accurate copy of every material fact which could identify the bill- the date, the place where drawn, the amount, the merchandise on which it was drawn, the ship by which it was sent, the balance on the cotton for which it was accepted, the names of drawers, acceptor, indorsers; in fine, every thing necessary to identify the bill. The only variance is a mistake in copying or deciphering the abbreviations and flourishes with which the christian name of the acceptor's agent is enveloped. The abbreviation of "And." has been mistaken for Chas., and the middle letter E. omitted. The omission of the middle letter would not vitiate a declaration or indictment. Nor could the mistake mislead any per

son as to the identity of the instrument described.

[ * 609 ] * We are of opinion, therefore, that the objection made to this protest," that it does not describe the bill of exchange produced, but a different bill," is not true in fact, and should have been overruled by the court.

This renders it unnecessary for us to notice the offer of testimony to prove the identity, which was also overruled by the court.

The judgment of the circuit court is reversed, and a venire de novo awarded.

Griffin v. Reynolds. 17 H.

JACK T. GRIFFIN AND WIFE, Plaintiffs in Error, v. JAMES Y. REY

NOLDS.

17 H. 609.

In an action of covenant on a warranty of title to land, the record of a recovery had, in ejectment, against the plaintiff in the action of covenant, is admissible in evidence, though he was examined as a witness for the plaintiff in ejectment.

Where the covenantee had been evicted from part of the land, it is erroneous to instruct the jury to allow a like part of the purchase-money, as damages in an action of covenant; the value of that part of the land lost, taking the consideration paid as the value of the whole, and adding interest from the time of the loss, and expenses, would be the measure of damages.

A married woman is not liable to an action of covenant, though she join with her husband in warranting the land as to which she releases her claim to dower.

ERROR to the district court of the United States for [* 610 ] the northern district of Mississippi. The case is stated in the opinion of the court.

Reverdy Johnson, Jr., and Reverdy Johnson, (with whom was Adams,) for the plaintiffs.

Lawrence, contrà.

CAMPBELL, J., delivered the opinion of the court.

The defendant recovered a judgment in the district court, for damages sustained by the breach of a covenant of warranty of title to land in Alabama, contained in a conveyance of the plaintiff to him.

To establish the existence of an outstanding paramount title at the date of the conveyance, the defendant relied upon a judgment and execution in a suit in ejectment, commenced in Alabama, for the land, a few days after the date of the deed, to which the plaintiff (Griffin) was a defendant, and which resulted in a judgment against him, that was followed by a writ of possession, which is returned "executed." It appears, from the evidence, that the defendant was called by the plaintiff in the ejectment suit as a witness, though it is not clear to what fact in issue. Objection was made that the record of the suit could not be used under these circumstances. The district court admitted the record, but referred it to the jury to determine whether his testimony was material, and, if so, to disregard the evidence.

This ruling is assigned as error. There are authorities to the point that a record of a verdict and judgment cannot be used in favor of one who has contributed, by his evidence, to their recovery, 18 Johns. 351; 4 Day, 431; 2 Hill & Cow. notes 5; and one of the reasons assigned for confining the use of judgments to the parties and

Griffin v. Reynolds. 17 H.

privies to them is, that a stranger may have produced them by his testimony. But the court is of opinion that this exception to the general rule, defining the parties by whom the evidence may be used, would introduce an inconvenient collateral inquiry, and that no prac tical evil will result from maintaining the general rule unimpaired; and that it is important that the rules of evidence should be broad and well defined.

The record in the present suit should have been admitted, without any reservation. Blakemore v. Glamorganshire Canal Co. 2 C. M. and R. 133.

There was some doubt upon the trial whether the issue of the de

fendant could be sustained by this evidence, and therefore he [* 611] attempted to prove the existence of a paramount title in the lessors of the plaintiff in the ejectment suit. For this purpose he proved that the land had belonged to one Oliver, who, in 1838, conveyed it to trustees, to secure certain liabilities described in the deed, and that under this deed the property had been recovered; that the plaintiff's title came from Oliver, by sheriff's deeds, dated in 1841, and was inferior to that of the trustees. To prove the deed of trust, he introduced a copy from the records of the probate court in Alabama, where it had been recorded, but gave no evidence to account for the original.

At the date of the copy there was no law in Alabama which authorized the use of copies in place of, and without accounting for the original; and in relation to deeds of trust, the registry acts of that State merely required their registration for the purpose of giving notice, but did not assign any value to the record as evidence in courts, nor has any statute of Mississippi enlarged the operation of the statute of Alabama in that State. Bradford v. Dawson, 2 Ala. 203; 5 ibid. 297; 13 ibid. 370. We think that this copy should not have been admitted.

The deed from the plaintiff to the defendant, in which the warranty is contained, is an original and absolute deed, duly acknowledged and recorded; and the act which authorizes the acknowledgment, also provides that it shall be admitted as evidence in courts without further proof. Clay's Dig. 161, § 1; Robertson v. Kennedy, 1 Stew. 245.

We think that, under the decisions of this court, this deed was properly admitted. Owings v. Hull, 9 Pet. 607.

The court was requested by the plaintiffs "to instruct the jury that this is an action for damages, and that the plaintiff can only recover the value of the part lost, if a part only was lost at the time of the eviction, in proportion to the amount he paid," which charge was refused; and the jury was instructed "that if the plaintiff had not

Judson v. Corcoran. 17 H.

lost all the land conveyed to him by the defendant, then the jury might allow him the average value of the part lost, in proportion to the price paid for the whole. The charge given by the court is erroneous. The measure of damages is the loss actually sustained by the eviction from the land for which the title has failed, and that damage would not usually be ascertained by taking the average value, though the recovery could not exceed the consideration paid, interest, and expenses of suit. The joinder of the wife with the husband, in this action, is also assigned for error. The statutes of Alabama authorize the wife to bar her claim to dower by such a conveyance as this, but do not enlarge her power to enter into personal engagements or to incur responsibilities for the title. George v. Gooldsby, 23 Ala. 327; Hughes v. Williamson, 21 ibid. 296.

There is a misjoinder of parties. But this objection is [* 612 ] taken here, for the first time; and the difficulty may be obviated by a nolle prosequi in the district court, which is allowable under the decisions of this court. Minor v. Bank of Alexandria, 1 Pet. 46; United States v. Leffler, 11 ibid. 86; Amis v. Smith, 16 ibid. 303.

Judgment reversed and cause remanded.

WILLIAM JUDSON, Appellant, v. WILLIAM W. CORCORAN.

17 H. 612.

Though the award of commissioners under the act of March 3, 1849, (9 Stats at Large, 393,) passed to carry into effect the convention between the United States and Mexico, does not finally settle the equitable rights of third persons to the money awarded, yet it makes a legal title to the person recognized by the award as the owner of the claim; and if he also has equal equity, his legal title cannot be disturbed.

Though the first purchaser of a chose in action, generally, has the better right, he may lose his preference by laches, as, under the circumstances of this case, he was held to have done.

APPEAL from the circuit court for the District of Columbia. The case is stated in the opinion of the court.

Lawrence and Coxe, for the appellant.

Bradley and Carlisle, contrà.

CATRON, J., delivered the opinion of the court.

Judson brought this suit in equity, to recover $6,000 from William W. Corcoran, in whose favor a decree had been made for about $15,000, by the board of commissioners acting according to the 15th article of our treaty with Mexico of 1848.1

19 Stats. at Large, 922.

Judson v. Corcoran. 17 H.

Corcoran claimed, as assignee, under Bradford B. Williams [*613] * and Joseph H. Lord, who were owners of the cargo of the ship Henry Thompson, and which was unlawfully seized and confiscated by the authorities of Mexico.

The claim having been presented to the mixed commission under the convention between the United States and Mexico, of April, 1839,1 the American members of that board made a report in favor of the claim; but the Mexican commissioners not concurring in the opinion of their colleagues, the case was referred to the umpire, and was returned by him without a decision. It therefore constituted one of that class of cases embraced in the 5th article of the unratified convention of the 20th November, 1843, and which is referred to and incorporated into the 15th article of the treaty of peace of Guadaloupe Hidalgo; and having been modified in some of its provisions, the ratifications were exchanged on 30th May, 1848.

On the 3d March, 1849, an act of congress was passed to carry some of the provisions of this treaty into effect. Among other things, it provided for the establishment of a board of commissioners," whose duty it shall be to receive and examine all claims of citizens of the United States upon the republic of Mexico, which are provided for by the treaty, and to decide thereon according to the provisions of the treaty."

On the 11th of June, 1845, Bradford B. Williams assigned one half of his interest in the claim in dispute to E. H. Warner. August 15, 1845, Warner assigned the same interest to William B. Hart. October 15, 1846, Williams assigned to Hart the residue of his interest. October 3, 1846, Joseph H. Lord assigned to Hart all his interest in the claim. June 18, 1847, Hart assigned the whole claim to William W. Corcoran.

"By these several assignments, (says the late board,) the whole became vested in the said William W. Corcoran, and the award was therefore made in his favor."

On the first day of January, 1845, Bradford B. Williams had assigned to William Judson, the complainant, an interest of $6,000, of the amount of the suspended claim pronounced valid by our commissioners, in 1842, with interest from the date of the assignment.

From January, 1845, to June, 1847, about two years and a half, Judson held his assignment without filing any notice of its existence at the department of state, so that others might have notice of his interest, nor did he set up any pretension until the assignee, Corcoran, had prosecuted the claim to a final award, and was adjudged

18 Stats. at Large, 527.