Covenant. or what is sometimes styled "wild lands." Davis et al. v. Mason, 1 Peters, 506. 2. If a right of entry on lands exists, it ought to be sufficient to sustain the tenure acquired by the husband, where no adverse possession exists. Ibid. 508. 3. At present it is fully settled in equity, that the husband shall have curtesy of trust, as well as of legal estates, of an equity of redemption, of a contingent use, or money to be laid out in lands. Ibid. statute. In the absence of such proof, the title shown by the party in possession is so complete as to prove, in an action upon a covenant against encumbrances, that a recovery obtained by the adverse claimant was not by a paramount legal title. Somerville v. Hamilton, 4 Wheat. 230; 4 Cond. Rep. 436. 6. Although many nice distinctions are to be found in the books, upon the question, whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent, yet it is evident the in 4. In Maine, a husband is entitled to hold a trust estate of his wife, as tenant by the curtesy.clination of courts have strongly favoured the Robinson v. Codman, 1 Sumner's Rep. 121. latter construction, as being obviously the most just. The Bank of Columbia v. Hagner, 1 Peters, 464. 5. In Rhode Island, a husband is not entitled to a life estate, as tenant by the curtesy, of any remainder or reversion owned by his wife, but only of real estate of which she has actual seisin and possession in fee. Stoddard v. Gibbs, 1 Sum-pretation of contracts, are to be governed by the ner's Rep. 263. COVENANT. 1. A trustee is, in general, suable only in equity, and if he chooses to bind himself by a personal covenant, he is liable at law for a breach of it; although, in the instrument, he describes himself as trustee. Duvall v. Craig, 2 Wheat. 45; 4 Cond. Rep. 25. 2. Where the parties to a deed, covenanted severally against their own acts and encumbrances, and also to warrant and defend against their own acts, and those of all other persons, with an indemnity in lands of an equivalent value in case of eviction; it was held that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands; but that it was sufficient to allege a prior encumbrance by the acts of the grantors, &c., and that the action might be maintained on the first covenant in order to recover pecuniary damages. Ibid. 3. Where the grantors covenant generally against encumbrances made by them, it may be construed as extending to several, as well as joint encumbrances. No profert of a deed is necessary where it is stated only as inducement, and where the plaintiff is neither a party nor privy to it. Ibid. 4. An averment of an eviction under an elder title is not always necessary to sustain an action on a covenant against encumbrances: if the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the covenant. Ibid. 5. Where the defendant in ejectment for lands in North Carolina has been in possession under title in himself, and those under whom he claims, for a period of seven years, or upwards, such possession is, by the statute of limitations of North Carolina, a conclusive legal bar against the action by an adverse claimant, unless such claimant brings himself, by positive proof, within some of the disabilities provided for by that 7. The general principle adopted by civilized nations is, that the nature, validity, and inter laws of the country where the contracts are made, or to be performed. But the remedies are to be governed by the laws of the country where the suit is brought; or, as it is compendiously expressed, by the lex fori. Because an action of covenant will lie in Kentucky, on an unsealed instrument, it will not lie in another state, where covenant can only be brought on an instrument under seal. The U.S. v. Donally, 8 Peters, 361. 8. Parol evidence is not admissible in an action of covenant of seisin to prove prior claims in law. Pollard v. Dwight, 4 Cranch, 421; 2 Cond. Rep. 157. 9. A covenant under seal to come to a settlement within a limited time, and to pay the balance which might be found due, is merely collateral, and cannot be pleaded as an extinguishment of a simple contract debt, the period within which the settlement was to be made having elapsed before the commencement of the suit, and the plea not averring that such settlement had been made. Baits v. Peters and Stebbins, 9 Wheat. 556; 5 Cond. Rep. 675. 10. In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount; but no formal terms are prescribed in which the averment is to be made. Day v. Chism, 10 Wheat. 449; 6 Cond. Rep. 181. 11. Where it was averred in such a declaration, "that the said O had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law," it was held sufficient as a substantial averment of an eviction by title paramount. Ibid. 12. Where plaintiffs declared in covenant both as heirs and devisees, without showing in particular how they were heirs, and without setting out the will, it was held not to be fatal on general demurrer. Ibid. 13. An action may be sustained on a covenant of seisin, although the plaintiff has never been evicted; and the declaration need not aver an eviction. Pollard et al. v. Dwight et al., 4 Cranch, 421; 2 Cond. Rep. 157. 14. A covenant by an executor, on a conveyance of land of his testator, in his capacity as Covenant. executor, "and not otherwise," is not binding ou him in his individual capacity. Thayer v. Wendell, 1 Gallis. C. C. R. 37. 15. A covenant, that the premises sold were, in due form of law, extended upon, and taken in execution to satisfy a debt due to the testator, and that all the forms of law relating to the setting off, &c., have been complied with, is a venant for the regularity of the proceedings only, and not for the validity of the title. Ibid. 23. The holder of property let upon ground rent, where there is a covenant to pay the rent, although the same was not made by the holder, is liable to pay the ground rent, so long as pos session is retained by him. Hurst v. Rodney, 1 Wash. C. C. R. 375. 24. Where the covenants are dependent, the co-plaintiff cannot support his action for a breach, without showing performance on his part of every affirmative covenant; and it is competent to the defendant to show a breach of such as are negative. But where the covenants are independent, the defendant cannot be permitted to avail him self of a breach of those to be performed by the plaintiff, under the plea of covenants performed with leave, &c. Webster v. Warren, 2 Wash. C. 16. Action of covenant, upon an agreement under seal, entered into in 1804, in which the defendant bound himself to pay to the plaintiff two notes of twelve hundred and fifty dollars each, and an unliquidated demand, when it should be liquidated, forthwith; after the defendant should obtain, or be in a legal capacity | C. R. 456. to obtain the lawful possession of the Georgia 25. Where, in a building contract, the followlands conveyed by him to E. G. The declara-ing covenant was contained: "The said houses tion averred, that on and ever since the 1st of May, 1806, the defendant was in the legal capacity to obtain, &c.; and, on this, issue was joined: Held, that until the defendant was in the legal capacity to obtain possession of the lands, the plaintiff's claim was suspended; and as soon as the capacity existed, the plaintiff's right accrued, although the defendant did not choose to obtain, or endeavour to obtain the possession. Bleecker v. Bond, 3 Wash. C. C. R. 529. 17. The mortgagee of the defendant, as the agent of the defendant, having received, from the United States, compensation for the lands conveyed to the defendant, by E. G.; and he having conveyed the land to the United States, they being part of the Yazoo lands, the defendant is estopped thereby, from denying his legal capacity to obtain possession of the lands. Ibid. 18. Covenant will not lie upon words in an instrument inserted by way of condition or defeasance, by the performance of some collateral act. United States v. Brown, 1 Paine's C. C. R. 422. 19. So upon a penal bond, conditioned that one should account for public moneys, property, &c.: Held, that the covenant would not lie upon the condition. But the covenant will lie upon the bond itself; but the breach assigned must be the nonpayment of the penalty. Ibid. 20. Where covenant was brought upon bond itself, and the breach assigned was the nonperformance of the condition, it was held bad on demurrer. Ibid. 21. Where the whole consideration for any stipulation fails, or it becomes incapable of being performed substantially, as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. Kleine v. Catara, 2 Gallis. C. C. R. 61. 22. When the covenants in an agreement are dependent and concurrent, the plaintiff must aver and prove performance, or offer to perform the covenants on his part; and to ascertain what covenants are of this description, the intention of the parties is to be sought for rather in the order of time in which the acts are to be done, than from the structure of the instrument. Goodwin v. Lynn and Butts, 4 Wash. C. C. R. 714. to be completely finished on or before the 24th of December next, under a penalty of one thousand dollars, in case of failure:" it was held that this was not intended as liquidated damages for the breach of that single covenant only, but applied to all the covenants made by the same party in that agreement; that it was in the nature of a penalty, and could not be set off in an action brought by the party to recover the price of the work. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210. 26. An agreement to perform certain work within a limited time, under a certain penalty, is not to be construed as liquidating the damages which the party is to pay for the breach of his covenant. Ibid. : 27. To avoid circuity of action, a covenant may be pleaded as a release; but it must be a covenant between the parties only and if it contains no words of release, it will not be construed such, unless it gives the covenantor a right of action, which will precisely countervail that to which he is liable; and unless, too, it was the intention of the parties that the last instrument should defeat the first. Garnett, Ex'r of Brook v. Macon et al., 2 Brockenb. C. C. R. 185. 28. Action of covenant brought by the plaintiff in error, to recover the amount of certain rents alleged to have been due and in arrear from the defendant since the death of his intestate, under an indenture, by which an annual rent was reserved out of the property conveyed by the indenture, and which the grantee covenanted to pay; a clause of re-entry for non-payment of the rent being contained in the deed. By the court:-It is firmly established, that on a covenant to pay rent, reserved by the deed granting real estate subject to the rent, the personal representatives of the covenantor are liable for the non-payment of the rent after an assignment, although there may be a good remedy against the assignee. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England. Scott v. Lunt's Adm'r, 7 Peters, 596. 29. A covenant to suspend proceedings upon a judgment, until another security given by the defendant is exhausted, and proves inadequate, not being perpetual, does not release the judg Coverture. Creditor. ment. The judgment continues in full force, female, and her children, as his slaves: Held, with all its legal incidents attached to it. Scriba & Co. v. Deans et al., 1 Brock. C. C. R. 166. 30. Query, Where a man covenants to convey land, and breaks his covenant to convey, in order to avail himself of their increased value, and an action of covenant is brought to recover damages for the breach, if the value of the lands at the time of trial should not be the standard of damages? Letcher & Arnold v. Woodson, 1 Brock. C. C. R. 212. 31. But it seems that where a man contracts for the sale of lands without fraud, and it afterwards appears, that he had in truth no title to the lands when the contract was entered into; and in consequence of his want of title he refuses to convey; the standard of damages in an action founded upon the covenant, is the value of the lands at the time of the contract entered into, and not their value at the time of trial. Ibid. 32. Whether the jury, in such a case, should allow interest upon the value of the lands at the date of the contract, must depend upon the circumstances of the case, of which they are the proper judges; and it is competent for the defendant to give in evidence to the jury any circumstances tending to show that interest should not be allowed. Ibid. COVERTURE. 1. By the law of Maryland, a married woman cannot dispose of real property, without the consent of her husband; nor can she execute a good and valid deed to pass real estate, unless he shall join in it. The separate examination and other solemnities required by law are indispensable, and must not be omitted. A deed, therefore, executed by a married woman, of real property, acquired by her while a feme sole trader, while she was abandoned by her husband, is void. Rhea et al. v. Rhenner, 1 Peters, 109. 2. The privy examination and acknowledgment of a deed, by a feme covert, so as to pass her estate, cannot be legally proved by parol testimony. Elliott et al.v. Peirsol et al., 1 Peters, 337. 3. A wife having separated herself from her husband, for ill-treatment by him, applied to the county court of Prince George, Maryland, for alimony, which was allowed to her, pendente lite. The husband gave the wife a female negro slave, and some other property, in discharge of the alimony. She removed to Washington, hired out the slave, and afterwards, in consideration of a sum of money, and for other considerations, she manumitted, by deed, the slave, and her two infant children, the eldest not being three years old. Some time after the arrangement between the husband and wife, a final separation took place between them, by a verbal agreement; each to retain "the property each had, and to be quits forever," and the wife relinquished all further claim for alimony. After the death of the wife, the husband claimed the that they were free by virtue of the deed of manumission executed by the wife. Wallingford v. Allen, 10 Peters, 583. 4. Agreements between husband and wife, during coverture, for the transfer by him of property directly to the latter, are undoubtedly void at law. Equity examines them with great caution, before it will confirm them. But it does sustain them when a clear and satisfactory case is made out, that the property is to be applied to the separate use of the wife; where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit, or of their family; or which has been appropriated by him to his uses; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property for her use. Either case. equity will sustain, though no trustee has been interposed to hold for the wife's use. Ibid. 5. Marriage of the plaintiff, pendente lite, does not of itself abate the suit. The objection can only be made available by plea in abatement. Chirack v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 6. The incapacities of femes covert provided by the common law, apply to their civil rights, and for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. These political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principle of the law of nations. Shanks et al. v. Dupont, 3 Peters, 248. CREDITOR. 1. If a factor, with a del credere commission, sells the goods of his principal, and takes negotiable securities in payment, and fails before they become due, and assigns the securities to his assignees for the benefit of his creditors, and the assignees receive the money when the notes become due, the principal may recover from the assignees, subject to a deduction of the commission of the factor for his commission and charges. Thompson v. Perkins, 3 Mason's C. C. R. 232. 2. It is not a fraud upon any attaching creditor, to provide for the payment of all the creditors in preference to one who means to attach by process the property conveyed. Halsey v. Whitney, 4 Mason's C. C. R. 206. 3. The assent of creditors to an assignment not stipulating for a release may be presumed. Aliter, if a release is stipulated for. Ibid. 4. If the terms of a covenant by creditors to indemnify the debtor against claims under them are general, it will be construed a several covenant by each creditor, unless they consent to relinquish a part of their debts. Ibid. 5. Where a bill of lading consigns the property for sales and returns, the consignee can alone endorse the bill of lading so as to pass the title Destroying a Vessel at Sea, to the Injury of the Underwriters. to the goods. But subject to such an endorse- | married woman suing by her next friend, to rement to a purchaser, the consignee may by a cover a legacy bequeathed to her, where the legal conveyance assign a legal title to them, so husband has transferred all his marital rights, in as to be good against his own creditors. D'Wolf the legacy, to his wife. Gallego v. Gallego's v. Harris, 4 Mason's C. C. R. 515. Ex'r, 2 Brockenb. C. C. R. 285. 6. Where property abroad is transferred as security, or absolutely, it is sufficient to convey a good title to the purchaser against creditors, if he uses due diligence upon the return voyage to take possession of the proceeds; although they may be consigned to the vendor. Ibid. 7. A bill of sale of a ship and cargo lying in port, is, as against creditors, good and valid, if bona fide made, although possession is not taken of the same by the purchaser, if such bill of sale be merely by way of mortgage or security, and not absolute, and it is pursuant to the agreement of the parties, that the mortgagor shall have the conduct and management of the voyage on which the ship is then destined. Ibid. 8. Creditors are not necessary or proper parties generally in a bill between partners to wind up the partnership concerns. Hoxie v. Carr, 1 Sumner's C. C. R. 173. 9. Upon the dissolution of a partnership, each partner has a lien upon the effects, as well for his own indemnity against the joint debts, as for his proportion of the surplus; but the creditors of the partnership, as such, have no lien upon the partnership effects for their debts. Ibid. 10. It is not necessary for the validity of a deed of assignment for the benefit of creditors, that the creditors shall be consulted; although the propriety of pursuing such a course will generally suggest it, where they can be assembled. But be this as it may, it cannot be necessary that the fact should appear on the face of the deed. Brashear v. West, 7 Peters, 608. 15. A legacy, until it is recovered, is a chose in action, and the marital right of the husband to his wife's legacy does not attach, until it is reduced into possession; he may indeed sue for it, and reduce it into possession; but so long as it continues a chose in action it is the property of the wife. Ibid. 16. A relinquishment by the husband of his marital right to a legacy bequeathed to his wife, is valid as to the creditors of the husband, and a court of equity will not interpose its authority to compel the husband to reduce the legacy into his possession, for the purpose of subjecting it to their claims. Ibid. 14. Treason...... 510 510 511 513 15. Violation of the neutrality of the United States.. 516 11. An insolvent debtor has a right to prefer one creditor to another in payment, by an assignment made bona fide; and no subsequent 1. Destroying a Vessel at Sea to the Injury of the attachment, or subsequently acquired lien, will avoid such assignment. Spring et al. v. South Carolina Ins. Co., 8 Wheat. 268; 5 Cond. Rep. 434. Underwriters. whom the vessel insured was destroyed, without proving the existence of a legal corporation authorized to insure, or a compliance on the part of such corporation with the terms of its charter, or the validity of the policy of insurance. United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362. 1. Under the second section of the act of March 26, 1804, ch. 393, on an indictment for 12. A debtor has a right to prefer one creditor destroying a vessel with intent to prejudice the to another in payment; and it is no objection to underwriters, it is sufficient to show the existence the validity of an assignment for that purpose, of an association actually carrying on the busithat it was made by the grantor, and received ness of insurance, by whose known officers, de by the grantee, as trustee, in the hope and ex-facto, the policy was executed, and to prejudice pectation, and with the view of preventing a prosecution for felony, connected with his transactions with his creditors; if the preferred creditors have done nothing to excite that hope, and the assignment was made without their knowledge or concurrence at the time of its execution, and without a knowledge of the motives which influenced the assignor; or was not after- 2. The law not making it an offence in the wards assented to by them, under some engage-owner to destroy his vessel to the prejudice of ment, express or implied, to suppress or forbear the underwriters on the cargo, no evidence can the prosecution. Brooks v. Marbury, 11 Wheat. be given to establish charges against the de78; 6 Cond. Rep. 229. fendant for such destruction, to the prejudice of 13. An assignment for the benefit of preferred the underwriters on the cargo, even if the indictcreditors, is valid, although their assent is not ment contained such a charge. Evidence of the given at the time of its execution, if they sub- value of the property insured may be given to sequently assent in terms, or by actually receiv- show inducements to destroy or preserve it. The ing the benefit of it. Ibid. United States v. Richard Johns, 1 Wash. C. C. R. 363. 14. A court of equity will sustain the bill of a Confining the Master of a Vessel.-Counterfeiting Coin.-Forgery. 3. It is necessary in the indictment to state | the restraint is but momentary, is a confinement that the intent was to prejudice the underwriters. prohibited by law; and such conduct is not exIbid. cused or justified by a previous battery on the seamen, to enforce a command which the seamen ought to have performed. Ibid. 4. The prosecutor on an indictment for destroying a vessel, must show that the insurance is a valid insurance; and if made by an incorporated insurance company, the act of incorporation must be shown, and the contract of insurance must be shown to have been executed. Ibid. 5. The legal meaning of the term "destroy," by the act of congress, is to unfit the vessel for service, beyond the hope of ordinary means. This, as to the extent of the injury, is synonymous with ". cast away." "" Both mean such an act as causes the vessel to perish and to be lost, or to be irrecoverable by ordinary means. Ibid. 2. Confining the Master of a Vessel. 6. To constitute the offence of confining the captain, the act of confining must be feloniously done. The United States v. Henry, 4 Wash. C. C. R. 428. 7. To take hold of the master, on the deck; and afterwards presenting a pistol at his breast in the cabin, and thereby preventing his going on deck, is a confinement of the master. The United States v. Stevens, 4 Wash. C. C. R. 548. 15. To constitute a confinement of the master within the purview of the same act, it is sufficient that there is a personal seizure or restraint of the master, although it may be for the purpose of inflicting personal chastisement upon the master. United States v. Savage, 5 Mason's C. C. R. 464. 3. Counterfeiting Coin. 16. The head pistareen, is no part of the Spanish milled dollar. Such pistareen or piece of coin is not a silver coin of Spain, made current by law in the United States. United States v. Gardner, 10 Peters, 618. 4. Forgery. 17. Indictment in the circuit court of North Carolina for the forgery of, and an attempt to pass, &c., a certain paper writing in imitation of, and purporting to be a bill or note issued by the president, directors and company of the Bank of the United States, founded on the eighteenth section of the act of 1816, establishing 8. Any confinement of the master, whether by the Bank of the United States. The note was depriving him of the use of his limbs, or by shut-signed with the name of John Huske, who had ting him in the cabin, or by intimidation preventing him from the free use of every part of the vessel, amounts to a confinement of the master within the twelfth section of the act of congress of April 2, 1799, ch. 38. United States v. Sharp et al., 1 Peters' C. C. R. 118. 9. Such offence, if committed within the mouth of a foreign river, which is a mile and a half wide, is within the act of congress. United States v. Smith et al., 3 Wash. C. C. R. 78. 10. A confinement of the master, within the statute of 1790, ch. 9, sec. 12, is not limited merely to a seizure of the master, and preventing the moving of his body, or to locking him up in a particular place, as a cabin or state-room, but extends to all restraints of personal liberty in freely going about the ship, by present force, or threats of bodily injury. United States v. Hemmer, 4 Mason's C. C. R. 105. 11. A master of a vessel may so conduct himself as to justify the officers and crew in placing restraints upon him, to prevent his committing acts which might endanger the lives of all the persons on board; but an excuse of this kind must be listened to with great caution, and such measures should cease whenever the occasion for them ceases. Ibid. 12. If the master of a vessel is restrained from performing his duties by such mutinous conduct in his crew as would reasonably intimidate a firm man; this is a confinement within the meaning of the act of congress. United States v. Bladen, 1 Peters' C. C. R. 213. not been at any time president of the Bank of the United States, but who, at the time of the date of the counterfeit, was the president of the office of discount at Fayetteville; and was countersigned by the name of John W. Sandford, who at no time was cashier of the mother bank, but was at the said date cashier of the said office of discount and deposit. Held, that this was an offence within the provisions of the law. United States v. Turner, 7 Peters, 132. 18. The policy of the act extends to such a case. The object is to guard the public from false and counterfeit paper, purporting on its face to be issued by the bank. It could not be presumed that persons in general could be cognizant of the fact, who, at particular periods, were the president and cashier of the bank. They were officers liable to be removed at the pleasure of the directors, and the times of their appointment or removal, or even their names, could not ordinarily be within the knowledge of the body of the citizens. The public mischief would be equally great whether the names were those of the genuine officers, or of fictitious or unauthorized persons, and ordinary diligence would not protect them against imposition. Ibid. 19. Indictment on the eighteenth section of the act of congress, passed on the 15th day of April, 1816, entitled "an act to incorporate the subscribers to the Bank of the United States." The indictment charged the defendant with uttering and forging "a counterfeit bill in imitation of a bill issued by the president," &c., of the bank. The forged paper was in these words and figures: "Cashier of the Bank of the United States, pay to C. W. Earnest, or order, five dollars. Office of discount and deposit in Pitts14. Seizing the person of the master, although | burgh, the 10th day of Dec., 1829. 13. The circumstance that the master went armed to every part of the ship, if it was necessary for his safety that he should protect himself, will not vary the case. Ibid. A. Bracken |