M'Cullough and Others v. Sommerville; Sommervilie v. M'Cullough and Others, 8 Leigh 415

CARR, J. Edward M’Cullough and John P. Gillespie were merchants and traders, carrying on merchandise at Clarksburg, Virginia, under the firm of M’Cullough & Gillespie. The concern seems to have been wholly under the management of M’Cul-iough ; Gillespie being a resident of Pennsylvania. On the 2d of October 1833, M’Cullough, having become much indebted, both in his individual capacity and for the firm, executed a deed to trustees, conveying all his private property and all the property of the firm, for the payment, 1st. of a list of creditors, in succession; and 2dly, of certain other creditors, ratably.

The list of creditors to be first paid is *made up indiscriminately of private and social creditors; and so is the list of those to be paid ratably. , The property conveyed is indiscriminately thrown in, without any separation of the one class from the other. Indeed it does not appear from the face of the deed, that there is any partnership; the whole wears the aspect of an individual securing his individual debts; and he executes it, not for the firm, but simply as the deed of Edward M’Cullough.

At the date of this deed, there were suits pending both against the firm and against M’Cullough individually ; and at the October term 1833 of the superiour court for the county of Harrison, he was (at the suit of creditors of both classes) surrendered by his bail, confessed judgments, and was prayed in execution. He remained in jail till October 1834, when he was discharged by the jailor, the creditors refusing to pay the jail fees.

In November 1833, Sommerville, a judgment-creditor of the firm, standing in the second class in the deed of trust, filed a bill in the same superiour court, praying to take the trust fund cut of the hands of the trustees, upon certain charges against them, and that the court would carry the said deed into execution ; praying also, that the absent partner might be proceeded against, and his interest in the firm condemned to pay the debt of the plaintiff. The judge received the bill, and granted the retaining order prayed for.

In May 1834, M’Cullotigh answered, averring the honesty of his purpose in executing the deed, and expressing his perfect willingness that the court-should, during its present term, make an order for selling the trust fund, on such terms as should be most for the interest of the creditors; giving to each the preference given in the deed of trust.

At the same term, the creditors generally) who arc named in the deed, having obtained judgments on the law side of the court, prayed, by their petitions, to be made parties to the suit, and let in to their proportion of the fund; and some who *haá not yet gotten judgments, and others who were not named in the deed, preferred the same prayer, and were all made parties. At the same term, the court ordered a sale of the trust fund; the cause having been previously set for hearing, the absent defendant properly proceeded against, and the bill taken for confessed against him and the trustees.

In May 1833, Shaw, Tiffany & Co. were permitted, on their petition, to make themselves parties ; and their petition states that they obtained a judgment against M’Cullough in October 1833, for 116 dollars 10 cents with interest and costs, and that he was prayed in execution, and discharged for failure to pay prison fees, irt October 1834.

They state his deed to secure certain creditors, and that said deed had never been recorded in Lewis county, where the lands conveyed by it were situated; and they (not being of the number of favoured creditors) pray that their judgment may be satisfied out of the proceeds of the Lewis land: the land having been then sold, and the proceeds in the hands of the court. These are the only parties who impugn the deed, and claim in opposition to it.

A reference of the claims of the creditors was ordered, and a report made, which has not been excepted to: and finally, on the hearing, the court set aside the deed altogether, as being fraudulent and void, and decreed that the fund be distributed among the creditors ratably, the social creditors being confined to the social subject, and the individual creditors to the individual subject; and that if there should be a surplus of either fund, it should go to the creditors of the other. From this decree the defendant M’Cullough and seven of the creditors have appealed.

The first question is, was the deed fraudulent. and therefore properly set aside? If it was, the preference it gives to favoured creditors would fall along with it: if not, that preference must stand, and govern the court in the distribution of the fund. For it is unquestionable *law, that a debtor in failing circumstances may prefer one creditor, or one set of creditors, to another; nor is his right to do so, at all weakened or impugned by the maxim that equality is equity.

This maxim is justly a favourite one in the courts of equity, in the cases to which it applies; but cannot be permitted to interfere with the right which a debtor has (where there is no existing lien) to secure this or that creditor, or class of creditors, in preference to others. Such preferences are forbidden by the bankrupt system, and the spirit of that system is pretty strongly infused into some of the english decisions; but yet even in England, the right of the debtor to make such preferences, is, in general, clearly admitted. I will cite a few cases to shew this. In Small v. Oudley, 2 P.

Wms. 427, an assignment was made to a particular creditor, to secure money lent by him to the trader, and this but the day before the act of bankruptcy was committed.

The master of the rolls said, “There may be just reason for a sinking trader to give a preference to one creditor before another; to one that has been a faithful friend, and for a just debt lent him in extremity, when the rest of his debts might be due from him as a dealer in trade, wherein his creditors may have been gainers; whereas the other may be not only a just debt, but all that such creditor has in the world, to subsist on: in this case,’ and so circumstanced, the trader honestly may, nay ought, to give the preference.” So in Cock v.

Goodfellow, 10 Mod. 489, a mother made an assignment to secure the fortunes of her children, given by the will of her husband, and placed in her hands as guardian; and lord chancellor Parker sustained it against the assignees of bankruptcy, though made but a short time previous to the act of bankruptcy. In answering some of the objections to the deed, he says, ‘ ‘The objection against it because made so near the act of bankruptcy, is a very frivolous one; for the deeds meant by the statute • are deeds made to *defraud creditors, whereas this was a deed made to secure a just debt.

But it is objected that this deed is made to give an undue preference to children. I know not what law or reason there is to favour this objection. Any body may make his creditor executor, and then the law gives him a preference: not only so, but the law allows the executor to give any other creditor in-equal degree a preference. A man who knows he must be a bankrupt, may by law pay off any of his creditors; and this power, as it may be abused, so on the other hand may be very properly exercised. There may be particular obligations in point of gratitude,” &c.

This doctrine of the courts of equity is also sanctioned by courts of law. In Estwick v. Caillaud, 5 T. R. 424, lord Kenyon says, “It is neither illegal nor immoral, to prefer one set of creditors to another.” In Nunn v. Wilsmore, 8 T. R. 528, the same judge saj's, “Putting the bankrupt laws our of the case, a debtor may assign all his effects for the benefit of particular creditors.” I refer also to the case of Murray v. Riggs, 15 Johns. Rep. 571, reversing the decree of chancellor Kent (see Riggs v. Murray, 2 Johns. Ch. Rep. 565), in which Thompson, C.

J., reviews the cases upon this subject, and concludes that “it is a settled and unshaken principle, both at law and in equity, that a failing debtor has a just, legal and moral right to prefer, in payment, one creditor or set of creditors to another.” Was this deed fraudulent? There is no evidence in the record to establish the fact; nothing to shew an intention to withdraw the effects of the firm from the creditors, or by any covin or collusion to disappoint their claims.

On the contrary, the whole property of every kind and description, not only of the firm but of the individual partner M’Cullough, is conveyed; thus stripping himself and the firm (so far as the grantor could) of every atom of property, and subjecting it to the payment of the creditors named.

And when the bill is *filed to «take this fund from the trustees, and put it under the guardianship of the court, to be administered by the court, he promptly answers, assenting to the measure, and praying that the court would forthwith order a sale of the whole subject: stipulating only that the proceeds shall be applied to the favoured creditors. This surely evinces that there was no fraud in fact, either perpetrated or intended.

But it is said that there is fraud in law, — fraud in the attempt by one partner to convey all the property of the firm, and to devote this property to the payment of specified creditors, without giving his copartner any voice in the matter; and moreover in jumbling together the separate and spcial funds, and directing the separate and social creditors to be indiscriminately paid according to the list. Bet us look at these objections in their order. 1st. One partner undertakes to convey the partnership property by deed.

Suppose we admit that this deed is ineffica-cious against the other partners; this surely does not shew that it is fraudulent and void: for the same rule which says that one partner cannot bind another by deed (Gow on Partnership, 75, 76), lays it down that the deed will be binding on the partner executing it; which it could not be, if fraudulent and void. But further: this deed, binding the grantor, conveys, for the purposes of the trust, at least all his individual property, and all his portion of the partnership funds. Thus, so much is secured for the payment of the creditors in the schedule.

Would it be right to take from these this preference, fairly gained, and which the debtor had an undoubted right to give, because he has attempted to convey his copartner’s share likewise? I cannot think so. But this is said upon the supposition that the deed is ineffectual to convej7 the copart-ner’s interest. Is it really so? I question it exceedingly. Let it be remembered, 1. That the whole of the social fund is personal estate ; the only land in the deed being the private property'xof M’Cullough. 2.

That M’Cullough is the sole managing partner; Gillespie residing in another state, and never, that we hear of, meddling with the business. 3. That the purpose for which the effects are conveyed, is the payment of bona fide creditors; of claims established beyond question. And though the deed does not devote the social fund exclusively to the social creditors, and the separate fund to the separate creditors, does it comport with the mild and beneficent spirit of equity, for this cause (the result doubtless of ignorance and mistake) to annul the deed?

Is it not better to reform it, by throwing each class of creditors upon its own fund, and thus reach the real justice of thevcase, and probable intention of the grantor?

This is a power of frequent exercise in equity; one instance of which is in reforming joint bonds, and making them operate as joint and several; “upon the reasonable presumption, that either through fraud, ignorance or inadvertence, the meaning of the parties has not been carried into effect.” I repeat, that considering that the social fund consists of personalty alone, that M’Cullough is sole manager, and that the deed conveys this fund to pay social debts, I am strong-ly inclined to believe that the deed is effectual to convey that whole fund.

We know that personal property may be disposed of by parol contract and delivery, and that every partner of a firm has this pow'er over every atom of social property, unless it be real estate. Suppose this partner had advertised that on such a day he would sell off the store goods, the bonds, and all the other property contained in this deed, and that the creditors of the firm should have liberty to purchase to the amount of their debts: would not such a sale as this have been perfectly within his powers? As much so, unquestionably, as it was to sell to a customer a yard of cloth.

If, instead of this, he had given a parol authority, or one in writing under his hand only, to one or two agents to make sale *of the partnership stock of goods and other effects, all would agree that it was

an act within his power; and this without consultation with his partner; for that partner having no

part in the management, and not even a residence, within the state, every thing, of necessity, was left to the discretion of M’Cullough. The ideas expressed upon this subject, though they appear to me sound and strong, I do not know that I should have had the confidence to follow, with my own opinion only to rely on. But I may truly say, non mens hie sermo. I have the support of one among the most eminent jurists and wisest men that our country can boast. I mean the late chief justice Marshall. The case of Anderson & Wilkins v.

Tompkins and others, decided by him in the circuit court of the United States for the state of Virginia, m June 1820, involved the very point before us. There was a mercantile firm doing business in the city of Richmond under the style of Tompkins & Murray. On the 29th of April 1819, Murray had embarked for England, leaving all the effects of the company in the hands of Tompkins, the partner remaining in this country, who continued for a short time to conduct the business of the concern.

The pressure of their affairs was such, that in May the house stopped payment, and Tompkins, for himself and partner, conveyed all the effects of the company, and also the separate property of himself and partner, to trustees, for the payment, first, of certain creditors named in the deed, and then of those who should bring in their claims, —the american creditors within sixty days, and the foreign creditors within six months. In November 1819, Murray, the other partner, while in England, executed a deed conveying his moiety of the property of the house, to certain creditors of the firm.

Here was a conflict of deeds; and as that of Tompkins was first in date, the last deed could only operate on that property which was not conveyed by the first. The question, then, was as to *the legal extent of Tompkins’s deed. The chief justice decided that it conveyed the whole partnership effects, except real estate. In his own lucid and strong manner, he shewed the general powers of partners over the effects of the firm, and the limitation to those powers. He then proceeded thus: “It is said, this transfer of property is by a deed, and that one partner has no right to bind another by deed.

Eor this, a case is cited from 7 T. R. which I believe has never been questioned in England or in this country. I am not, and never have been, satisfied with the extent to which this doctrine has been carried. The particular point decided in it, is certainly to be sustained on technical reasoning, and perhaps ought not to be controverted. I do not mean to controvert it. That was an action of covenant on a deed, and if the instrument was not the deed of the defendants, the action could not be sustained. It was decided not to be the deed of the defendants: and I submit to that decision.

No action can be sustained against the partner who has not executed the instrument, on the deed of his copart-ner. No action can be sustained against the partner, which rests on the validity of ' such a deed as to the person who has not executed it. This principle is settled. But I cannot admit its application to a case where the property may be transferred by delivery under a parol contract.

Where the right of sale is absolute, and the change of property is consummated by delivery, I cannot admit that a sale so consummated is annulled by the circumstance that it is attested by, or that the trusts under which it is made are described in, a deed.* No case-goes thus far, and I think such a decision could not be sustained on principle.

The powers of applying' all the goods on hand for sale, to the payment of the partnership debts, is, I think, a power created by the partnership, and the exercise of it must be regulated by circumstances.” following this high authority, I conclude that a partner has a right to convey the social effects (save real estate) to trustees, to pay specified creditors of the firm, and this without the assent of his co-partner, where (as here) that copartner resides out of the state, and the grantor is sole manager of the concern.

But’ it may be objected, that admitting this, the grantor has not, in our case, acted for the firm, but in his own name alone. True, this is the form which the scrivener has given to the deed; but equity looks at the substance. The grantor has, in truth and in fact, conveyed all the social fund, and has designated a number of the social creditors to be paid, greater than that fund will satisfy. There is still one more point to settle; that is, the claim of Shaw, Tiffany & Company.

They are not named ' in the deed, and they claim in opposition to it, standing on the lien of their judgment (which is against M’Cullough individually) and contending that the deed, though valid between the parties, is, as to them, void, so far as relates to the Lewis land, because it was never recorded in the county court of Lewis. It is clear that the law declares (1 Rev.

Code, ch. 99, ? 1, pp. 361, 362), that the deed shall not be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless proved in the manner directed, and recorded in the court of the county, city or corporation in which the land or some part thereof lieth. It is equally clear that this deed, though recorded in Harrison county', has not been recorded in Lewis, where the land lies.

Buf it is contended that none but judgment creditors who have preserved in full force the lien of their judgment, can take advantage of this defect in the *deed, and that the plaintiffs are not in that situation; because, having charged M’Cullough in execution, .the lien of their judgment was merged in the ca. sa. lien; and though he was afterwards discharged for failure to pay the jail fees, this did not remit the plaintiffs to the lien of their judgment, as they could take out no elegit or other execution, without first suing out a scire facias.

It is true that after the discharge from execution by the jailor, no new execution could issue without a scire facias: but is it true that this circumstance disabled the plaintiffs from coming into equity as judgment creditors, impeaching the deed, and getting satisfaction out of the proceeds of the land? I think not. My opinion is, that the capacity to sue out a scire facias was sufficient for this. In Coleman v.

Cocke, 6 Rand. 618, judge Green, delivering the opinion of a full court, says, “In all the cases upon the subject in the english court of chancery, it seems to have been the uniform course to consider a judgment, with the capacity to acquire the right to sue out an elegit, by scire facias or otherwise, as such a lien as gave jurisdiction to the court, whenever other circumstances justified its interposition.

And in no case has there ever been any enquiry whether the judgment had been kept alive by taking out execution within the year, or otherwise, or whether it had been actually, revived or not, in the case of the death of either party, unless from some cause (for instance, the great lapse of time) it was doubted whether the party could revive his capacity to sue out elegit, by reviving his judgment.” He refers to the case of Burroughs v. Elton, 11 Ves. 29.

In that case lord Eldon says, “In general cases, as I understand the practice, judgment creditors go into the Master’s office; judgment creditors in general, .who cannot stir at law without a scire facias, go and prove before the master with the creditors, without such step, but sustaining their proof by the ordinary course; giving in evidence the record of the judgment, and swearing that the debt is due.” Upon these authorities I am satisfied that Shaw, Tiffany & Company are properly before the court as judgment creditors ; that the deed, so far as relates to the Lewis lands, is not good as to them; and that their debt must be satisfied out of that subject.

With this exception, lam of opinion that the deed is valid: that the court should so reform it as to throw the social creditors upon the social fund, and the private creditors upon the private fund: that as to the social fund, it be distributed thus; 1. pay the social creditors of the first class, to each his full debt, interest and costs (if sufficient for that purpose) in the order designated by the deed; 2. the residue, if any, to the creditors of the second class, pro rata: as to the private funds, 1. pay to Shaw, Tiffany & Company their full debt, interest and costs; 2. to the creditors of the first class, to each in the order designated by the deed, his full debt, interest and costs (if sufficient for that purpose) ; and the surplus, if any, to the creditors of the second class, pro rata: and that the decree be reversed, and the cause sent back, with directions to be proceeded in according to the principles now declared.

CABELL, J. Myj brother Carr has taken so full a view of this case, as to render it unnecessary for any thing farther to be said. But there is one point on which I wish to be indulged with a few remarks.

The personal property in possession, and the choses in action, of a mercantile company, pass, like those of an individual, by delivery, or by written assignment without seal. *That one partner living in this state, and having the management of all the business of the company (the other partners residing out of the state) has the power to deliver over and to assign the goods and choses in action of the company, to the creditors of the company, in discharge of the partnership debts, is a position too clear, in my opinion, to require either argument or authority.

If he can do this directly, I think it equally clear that he may indirectly, by delivering1 and assigning them to an agent or trustee, to be applied in payment of the partnership debts. And if he may do this as to all the creditors, he may do it as to any one or more of them; and hence he may give a preference to a particular creditor, or to a class of creditors, although the consequence of such preference may, in case of a deficiency of funds, defeat the claims of the postponed creditors.

As to real estate, which the law declares shall pass by deed only, it is clear that the deed of one partner will pass nothing but his own interest therein ; because the deed of one partner is not the deed of the others, nor has he, as a partner, the power to execute a deed for them. But no seal being necessary to the transfer of the personal effects, in possession or in action, of a mercantile concern, and one partner having the power to transfer them, his transfer of them is binding on the company without a seal.

Does, then, the annexation of a seal to the instrument of transfer destroy that virtue which the instrument would have had without the seal? Is this a question to be seriously propounded to a court of equity and good conscience, which, in the absence of legal enactments, looks at the substance, regardless of the forms of contracts? Reason and common sense give the answer. As a. seal, except in cases where the law requires one, gives, in a court of equity, no additional validity to an instrument, the annexation of a seal *to an instrument, valid without it, cannot impair its validity. In Sale v.

Dishman’s ex’ors, 3 Beigh S48, there was a purchase of corn, on credit, by Berryman & Dishman; and the terms of the contract were evidenced by a covenant, signed and sealed by Sale, and by Berryman alone, in the name of the firm of Berryman & Dishman. Dishman having died, Berry-man, as surviving partner, came to a settlement with Sale, and executed his bond for the balance found due; but as he after-wards became insolvent, a suit in chancery was brought by Sale against Berryman and the executors of Dishman, on the original contract.

The bill was dismissed on the hearing, by the chancellor; but this court reversed the decree, and granted the relief prayed for. The president said, “It is apparent from the original agreement, signed by Berryman in the name of the firm, for the purchase of the corn from Sale, that the firm was looked to as debtors for the amount. It is natural that it should be so, as Dishman lent his name, to give credit to the firm.

The contract thus signed, and (by mistake of received principles, which deny the right of one partner to bind another, at law, by a seal) being sealed also, was nevertheless binding in equity upon both partners.” I concur in these remarks of the president.

Although the covenant executed by one partner imposes no obligation, as a covenant or sealed instrument, on the partner who did not sign and seal it, and therefore cannot be sued on as such, yet the covenant or sealed instrument of one partner, relating to a matter as to which he had a right to contract for the company, is evidence of the contract of the company, and that contract is binding on them as a parol contract; at least it is binding in equity. How far it may be evidence at law also, where there is no technical reason against it, I do not deem it necessary now to decide.

Suppose, however, a bond or note due to a firm be fairly transferred, for valuable consideration, *by written assignment indorsed on the bond or note, and signed and sealed by the acting partner; what technical reason, even, can be given, why an action at law may not be brought on it by the assignee? I confess I am unable to perceive any. Such a case would not come within the influence of the decision in Harrison v. Jackson &c., 7 T. R. 207, for in that case the plaintiff declared on a written instrument as the covenant of all the partners, when in fact it was sealed by one only.

But in the case supposed, the assignment might be stated without any reference to the seal. I concur in the decree prepared for the court by my brother Brockenbrough. BROCKENBROUGH, J., pronounced the decree of the court of appeals.

The court is of opinion that the deed executed by Edward M’Cullough to his trustees, bearing date the 2d day of October 1833, is not fraudulent, either in fact or in law: that although one partner cannot bind his co-partner by deed, so as to make it operative at law as a deed, yet that a court of equity, which regards substance rather than form, will not allow an assignment of personal goods, which would be otherwise lawful, to be defeated by the circumstance of a seal being annexed to it: that as the said M’Cullough was the sole managing'1 and active partner of the firm of M’Cuilough & Gillespie, the other partner being a resident of another state, it was competent for the said M’Cullough to sell and dispose of, and give a lien on, the goods, book debts, credits, and all the other chattels of the firm, to the bona fide creditors of the firm; that as the purpose of the deed was to provide for certain bona fide creditors of the firm, as well as for individual creditors of the said Edward M’Cullough, although the deed does not devote the social fund exclusively to the social creditors, and the separate fund to the individual creditors, yet it *will be proper for the court, in the exercise of its undoubted powers, to reform the deed in this respect, by throwing each class of creditors upon its own fund, and thus reach the justice of the case, and the probable intent of the grantor; and that it was entirely fair and competent, and consistent with the principles of law, for the said Edward M’Cul-lough to prefer one creditor, or set of creditors, to another.

The court is further of opinion that as the said M’Cullough’s tract of land, conveyed by the said deed, was situated in Lewis county, and as the deed was not recorded in that county, but only in Harrison county, it was not binding on any bona fide creditor of the firm, or of the said M’Cul-lough, so far as it regards the said tract of land, and that any creditor having a judgment lien, not included in the deed and not claiming under it, but asserting- his title against it, will be entitled to be paid his debt from that land, in preference to any creditors provided for b3r the deed, and claiming under it: that as Shaw, Tiffany & Company, individual creditors of Edward M’Cullough, had obtained a judgment against him in October 1833, under which, and others, he was taken in execution and kept in jail till October 1834, and was then discharged from custody by the jailor, by reason of the failure of the creditors (at whose suit he was in custody) to pay the jail fees; and as the said plaintiffs had then the capacity to sue out a scire facias to have a new execution against the goods and chattels or lands and tenements of the said M’Cullough, according to the statute in such case made and provided, they were remitted to their judgment lien, which bound the land in Lewis county, and have a right to be satisfied out of the land, or the proceeds thereof, in preference to any creditor named in the deed, and claiming under it.

The court is further of opinion that the circuit court acted with entire propriety in relieving the trustees from *the execution of the trust, and in taking a control of the funds for the purpose of distribution ; but that the court erred in vacating the deed, and in distributing the funds ratably amongst all of the creditors, without regard to the preferences established by the deed. It is therefore adjudged, ordered and decreed, that the decree of the said circuit court, rendered on the 26th day of May 1835, be reversed and annuled, and that the-appellants B. S. Elder & Sons, A. Hart & Company, A.

Groverman' & Son, Erskine, Eichelberger & Company, E. B Spalding, and Shaw, Tiffany & Company, recover from the appellee Maxwell Sommerville their costs in this court expended.

And the court proceeding to render such decree as the said court ought to have rendered, it is further adjudged, ordered and decreed, that after paying the charges and expenses in the said decree mentioned, including also the charge of the commissioner for his report, the social funds of M’Cullough & Gillespie under the control of the court be so distributed as to pay, 1st. the social creditors of the first class, to each his full debt, interest, and costs at law, in the order designated by the deed, if sufficient for that purpose: 2d. that if there be any surplus of the said social funds after payment of the social creditors of the first class, it be distributed amongst the social creditors of the second class, pro rata.

That the private funds of Edward M’Cullough, exclusive of the proceeds of the land sold in Lewis county, be distributed, 1st. to the individual creditors of the first class, to each his full debt, interest, and' costs at law, in the order in which they are named in the deed, if sufficient for that purpose: 2d. that if there be any surplus of the said individual funds after payment of the individual creditors of the first class, it be distributed amongst the individual creditors, námed in the deed who are to take pro rata.

And lastly, that as to the proceeds of the land, they are first to be applied to the paj-ment of *the debt, interest, and costs at law, of the appellants. Shaw, Tiffany & Company : and the surplus thereof, after the said payment to Shaw, Tiffany & Company, shall be paid, 1st. to such of the individual preferred creditors-as may not have received their full debt, interest and costs at law, from the individual personal fund above named; and 2dly, to the second class of individual creditors named in the deed, who are to, receive pro rata shares of their debt, interest and costs at law.

And it is further adjudged, ordered and decreed, that each party pay his own costs in the said circuit court: and this cause is. remanded to the said circuit court of Harrison, to be further proceeded in according to the principles of this decree. TUe above is taken from a manuscript copy, forming-part of a series of cases decided by chief justice Marshall in the circuit court of the United States for Virginia, and reported by mr. John W. Brockenbrougb. The work is about to be put to press, and will, I have no doubt, form a valuable addition to our stock of law learning.

Note by the judge. — The case is reported 1 Brock. Rep. 456.— Note by reporter. A scire facias to have a new execution against the goods and chattels, lands and tenements of the debtor, when discharged by the jailor for nonpayment of the jail fees by the creditor, is given by the act of February 12, 1823, § 5. Supp. to Rev. Code, ch. 145, § 5, p. 204. — Note by the judge.