1804 WINCHESTER V. HACKLEY. In the argument, the plaintiff has rested his | the county in which the offenses were commitcase on two points. He contends, 1st. That the act of Congress, pleaded by the defendant, is no bar to an action of debt. 2d. That if it be a bar, it applies only to the recovery of penalties given by acts which existed at the time of its passage. The words of the act are, "nor shall any person be prosecuted," &c., vol. 1, p. 144. It is contended that the prosecutions limited by this law, are those only which are carried on in the form of an indictment or information, and not those where the penalty is demanded by an action of debt. ted. That statute was expounded to extend In expounding this law, it deserves some But if the words of the act be examined, they will be found to apply not to any particular mode of proceeding, but generally to any prose341*] cution, trial, or punishment for the offense. It is not declared that no indictment The Court is of opinion that it be certified shall be found, or information filed, for any offense not capital, or for any fine or forfeiture to the circuit court for the district of Massaunder any penal statute, unless the same be inchusetts, that the issue in law joined in this stituted within two years after the commission case ought to be decided in favor of the deof the offense. In that case the act would be fendant. pleadable only in bar of the particular action. But it is declared, that "no person shall be prosecuted, tried, or punished;" words which show an intention, not merely to limit any particular form of action, but to limit any prosecution whatever. Cited-1 Gall 397; 2 Gall 554; 3 McLean 89; Id. 470. WINCHESTER v. HACKLEY.1 The defendant cannot offset a claim for bad debts made by the misconduct of the plaintiff in selling the defendant's goods as factor, the plaintiff not having guarantied those debts. But such misconduct is properly to be inquired into in a suit for that purpose. RROR to the circuit court for the district Eof Virginia. The declaration was for money paid and advanced by the defendant in error for the use of the plaintiff in error. It is true that general expressions may be reA creditor upon open account who has assigned strained by subsequent particular words, which debtor, is still competent to maintain an action at show that in the intention of the legislature, his claim to a third person with the assent of the those general expressions are used in a particu-ew in his own name against the debtor for the use lar sense: and the argument is a strong one, of the assignee; but the debtor is allowed to offset which contends that the latter words describing his claims against the assignee. the remedy, imply a restriction on those which precede them. Most frequently they would do But in the statute under consideration, a distinct member of the sentence, describing one entire class of offenses, would be rendered almost totally useless by the construction insisted on by the attorney for the United States. most every fine or forfeiture under a penal statute, may be recovered by an action of debt as well as by information; and to declare that the information was barred while the action of debt was left without limitation, would be to attribute a capriciousness on this subject to the legislature, which could not be accounted for; and to declare that the law did not apply to cases on which an action of debt is maintainable, would be to overrule express words, and to give the statute almost the same construction which it would receive if one distinct member of the sentence was expunged from it. In this particular case, the statute which creates the forfeiture does not prescribe the mode of demanding it; consequently, either debt or inforIt would be singular if the mation would lie. one remedy should be barred and the other left unrestrained: In support of the opinion that an act of limitations to criminal prosecutions can only be used as a bar in cases declared by law to be criminal at the time the act of limitations was passed, unless there be express words extending it to crimes to be created in future, Cun ningham's Law Dict. has been cited. 342*] *The case in Cunningham is reported in 1 Salk, and 5 Mod. and seems to be founded on the peculiar phraseology of the statute of the 21st Jac. 1., directing informations to be filed in Upon trial of the issue of non assumpsit two bills of exception were taken by the original defendant. The verdict was for plaintiff, 4,155 dollars damages. The first bill of exceptions stated, that the plaintiff below offered in evidence sundry bills of exchange drawn *by the defendant [*343 upon the plaintiff, to an amount equal to the fendant. And also several accounts current balance demanded by the plaintiff of the debetween the defendant, and the mercantile firm of Richard S. Hackley & Co. of the city of New York; of which the plaintiff and Seth B. change were debited to the defendant in the Wigginton were two; that the said bills of exsaid accounts, as being due from him to the said Richard S. Hackley & Co. and that the said accounts contained various other articles of debit and credit to a considerable amount, comday of menced on the ued till the day of and continwhen the firm of Richard S. Hackley was changed into that of Richard S. Hackley & Co. and concluded on the day of 1.-Present, Marshall, Ch. J., Cushing, Paterson, and Washington, Justices. 299 That in these accounts, the balance stated to be due from the defendant to the said Richard S. Hackley, on the day of is transferred, with the consent of the said Richard S. Hackley, to the said Richard S. Hackley & Co., and that the account in which the said balance is so transferred to the said Richard S. Hackley & Co., and the formation of that firm, were communicated by the said Richard S. Hackley himself to the defendant, before the thereafter made to the said Richard S. Hackley & Co. several remittances in money and commodities, towards the discharge of the said balance, and addressed to them several letters concerning the same, which remittances and letters came to the hands of the said Richard S. Hackley & Co. Whereupon the defendant moved the court to instruct the jury, that if the balance aforesaid was transferred as aforesaid to Richard S. Hackley & Co. it was not a subsisting debt from the defendant to the plaintiff alone, at the commencement of this suit. But the court (consisting of Marshall, Ch. J., and Griffin, District Judge) overruled the motion, being of opinion, that though the debt was in equity transferred to Richard S. Hackley & Co., yet the suit was maintainable for their benefit in the name of Richard S. Hackley. At the same time the defendant was permitted to give in evidence any discounts which he might claim against Richard S. Hackley & Co. The second bill of exceptions stated, that the plaintiff, to support his action, gave in evidence 344* sundry accounts *current between himself and the defendant, in which the plaintiff had credited the defendant, as being in the plaintiff's hands for collection, for the proceeds of a certain quantity of flour, which he had sold for the defendant, but had afterwards charged to the defendant several sums on account of the alleged insolvency of some of the purchasers of the said flour. It also appeared, that in the account current, and accounts of sales, the proceeds of sale of the said flour were stated to be outstanding, subject to collection, and the plaintiff did not undertake to guaranty the debts. Whereupon the defendant, in order to repel that evidence, offered to prove that the sums so charged to the defendant were lost by the mismanagement and misconduct of the plaintiff, in having made the sales to persons known by him to be unworthy of credit; but the court refused to permit such proof to be made to the jury in this action, being of opinion that such misconduct was properly to be inquired into in a suit for that purpose. This case being submitted without argument, the judgment was affirmed with costs. Cited-2 Blatchf. 361; 4 Wash. 94; 1 Ware 09. REILY, Appellant, the District of Columbia at the time of its separation from Maryland, unless the person had complied with all the requisites of the insolvent law so as to entitle himself to a discharge before that separation. law to plead his discharge under an insolvent act Quere, whether a person who has neglected at can avail himself of it in equity? A citation is not necessary when the appeal is prayed and allowed in open court. HIS was an appeal by Reily from a decree lumbia, which dismissed his bill in equity with costs. The defendant, Beall, some time in the year 1789 or 1790 had brought suit in the name of Lamar, for the use of Beall, by Robert Smith, his attorney at law, against Reily, the appellant, upon a note for 400 dollars, and recovered judgment in the general court of Maryland. The bill stated that during the pendency of that suit, the complainant Reily, supposing that Smith was fully authorized to receive payment of the debt in any manner he should think proper, sold him a tract of 4,600 acres of land in the state of Georgia, for the sum of 1,533 dollars, for the express purpose of discharging that debt and some others which Reily owed in Baltimore. That in settling with Smith for the purchase money of the land, the amount of that debt was deducted and left in [*345 the hands of Smith to be paid to Beall, under a promise from Smith that he would have the entry made upon the records of the court that the debt was satisfied. And after deducting also the amount of other debts which Smith undertook to pay for Reily, Smith paid him the balance by a check on the bank, being about 17 dollars. That thus the matter rested until the year 1799 or 1800, when being called on by Beall for payment, Reily applied to Smith to know why the debt had not been paid, who replied that it had been delayed in consequence of a dispute between one John Lynn, to whom the note had been indorsed, and the said Beall, as to which of them was entitled to the money; but that it had been settled by reference that Beall should have it: and that Reily might remain easy, for he should not be called on again for payment. That Reily informed Beall that he had paid the amount to Smith, and that Beall had acknowledged to several persons that he was satisfied the fact was so, and had employed counsel to bring suit against Smith for the money. That Smith had charged Reily with the said debt in his books, and that Reily had seen the entry in Smith's own hand-writing, and prays that the book may be produced. That after the said judgment was rendered, viz., on the 3d of January, 1800, the legislature of Maryland passed an insolvent law in favor of Reily, and others, and on the 23d of December, 1800, he conveyed all his estate to a trustee agreeably to the law, for the use of all his creditors, and that on the 4th of April, 1801, LAMAR, BEALL and SMITH, Appellees. tificate of discharge, (a copy of which is made the Chancellor of Maryland granted him a cerThe inhabitants of the District of Columbia, by part of the bill,) whereby it was adjudged and its separation from the states of Virginia and Mary-ordered that he should be discharged from land, ceased to be citizens of those states respectively. v. By the insolvent law of Maryland, of the 3d of January, 1800, the Chancellor of Maryland could not discharge a citizen of Maryland who resided in all debts, covenants, contracts, promises, and by him, before the aforesaid 23d day of Decemagreements due from, or owing, or contracted ber, 1800, provided that any property which that as attorney for Beall, he brought the suit against Reily, and that he purchased of him, as he then imagined, a certain parcel of land, consisting of 4,600 acres, represented by Reily to be in the State of Georgia, at the price of two shillings and six pence current money of Maryland per acre, amounting for the whole to the sum of 1,533 dollars and 33 cents: but denies that in making that purchase he undertook or assumed for Reily to pay the debt to Beall, and that Reily ever left in his hands any money for that purpose, and that he (Smith) ever promised to have an entry made on the records that the debt was satisfied. The answer then avers that Smith had availed himself of all the means respecting the title, and even of the existence of the Georgia land, and that failing in all his various attempts, he has reason to believe, and does believe, that he did not acquire any title. He denies that he ever told Reily that the payment of the debt by him (Smith) had been delayed in consequence of any dispute, and that he gave Reily any ground to believe or imagine that he (Smith) intended to pay the said debt, or any part of it. That he never charged Reily in any account against him with the amount of any part of the debt, and that no part of the purchase money was ever deducted to pay the debt. It avers also that Smith, in the years 1790, 1791 and 1792, did not keep any book of money accounts whatever, except a bank book, nor any kind of book of accounts wherein such an entry could with propriety have been made, and that there never was in his possession, or kept by him, such a book of accounts as the said Reily had alleged. The answer does not state that Smith has in any manner paid Reily for the lands. he had acquired since the execution of the said deed, or should acquire by descent, or in his own right by bequest, devise, or in a course of distribution, should be liable for the payment of his said debts. That a writ of scire facias having issued some time in the year 1800, to revive the said judgment, Reily instructed his attorney at law to plead the said discharge in bar thereof, which he neglected to do, without any default on the part of Reily. That all the property he possessed was duly delivered up to 346*] the trustee at the time of executing the deed of trust, and that all the property now in his possession was a devise, or the proceeds of a devise, to his wife. That execution having upon the scire facias aforesaid been award-in his power to obtain satisfactory information ed by the general court of Maryland, an exemplification of that judgment had been by the said Beall filed in the clerk's office of the circuit court of the District of Columbia, for the county of Alexandria, and execution issued thereon, with intent to levy the same upon the goods and effects held by Reily, in the right of his wife, to stay which, and all other proceedings at law, the bill prayed an injunction, &c. Beall, in his answer, stated, that he had never received any part of the money either from Reily, or Smith, who, he admits, was his attorney in the suit against Reily. That Smith denied that Reily had ever paid him the money, and that Beall had no knowledge, otherwise than by the information of Reily, that the same had been so paid. But that some time after the original judgment was obtained against Reily, Smith told Beall that if he would make to him, the said Smith, a handsome discount upon the said judgment, he would pay him the money for the same, which Beall refused to do. He admits, that for some time he did believe, and had declared his belief, that Reily had paid the money to Smith, and under that impression had given instructions to an attorney to examine into the business, and bring suit against Smith, or Reily, as he should judge best; but he never positively admitted the fact to be so, nor has he intimated such an opinion since he has seen Smith's answer. He does not admit that Reily had ever regularly and legally obtained the benefit of any insolvent law of Maryland, nor that he instructed his attorney to plead his discharge, but that if he did, the attorney was able to pay any damages which Reily might sustain by his negligence. That the plea would be a good plea at law, and therefore the complainant could not resort to equity for that benefit which he had lost by his negligence. He admits that it appears by the proceedings that the deed from Reily to his trustee under the insolvent law for the benefit of his creditors was dated on the 23d of December, 1800, and his discharge on the 4th of April, 1801, during all which time Reily lived either in the city of Washington, or town of Alexandria, and contends that, as the court below had determined that the jurisdiction of Maryland and Virginia over the ceded territory 347*] *ceased on the 1st Monday of December, 1800, the legislature or Chancellor of Mary and had no power to pass such law, or give such discharge to the said Reily. He does not admit that property now held by Reily is held in right of his wife. The answer of the defendant, Smith, admits The copy of the Chancellor's certificate of discharge, referred to in Reily's bill, states the date of the deed from Reily to his trustee to be the 23d of March, 1801, and not the 23d of December, 1800, as alleged in the bill, and admitted in Beall's answer. *The deed from Reily to Smith for [*348 the Georgia lands, and also a deed of quitclaim from Cobbs (from whom Reily purchased them) to Smith, and the surveyor's plat and certificate of survey, were produced in evidence. The depositions tended to prove that Smith had received from Georgia very favorable accounts of the Georgia land, and of the goodness of the title; and that the lands were worth a dollar per acre. That he had said, as late as June or July, 1801, that at the time of his purchase from Reily, it was understood that any debts due from Reily, which Smith should satisfy, were to be admitted as payment for the land; that believing at that time that he had made a valuable purchase, he did pay some debts and offered to pay others, if the creditors would make abatements. That by the contract he was at full liberty to settle any debt due from Reily, in the easiest and most advantageous way to himself; that he denied that he had engaged to pay any particular debt, but that he was to discharge the purchase money, by purchasing or satisfying claims against Reily, in any way he found best. That he offered to pay Beall the debt Reily owed him, if Beall would allow a handsome discount, but that Beall had refused to do so, and the conversa tion ceased. That he had not received any satisfactory information respecting the Georgia lands, and feared he had made an incautious purchase, and that the lands did not exist. He regretted that he had paid any thing; and said that he had offered Reily the lands again upon receiving what he had paid, which Reily declined. That he only wanted to be satisfied that there was such land as he had bought of Reily, and that he had title, and the business should be settled immediately with him; but that the business between Reily and Beall was out of the question between him and Reily. The evidence as to Beall, only went to prove that he had several times expressed a belief that Reily had settled the debt with Smith. At February term, 1804, a preliminary question was suggested by Mason, for the appellees, whether a citation was not necessary in cases of appeals, as well as in cases of writs of error, under the 22d section of the judiciary act of 1789, vol. 1, p. 62. 349*] *MARSHALL, Ch. J. The question turns upon the construction of the act of March 3d, 1803, vol. 6, p. 315. The words are, "and that such appeals shall be subject to the same rule, regulations and restrictions as are prescribed in law in case of writs of error." E. J. Lee, for the appellant. The reason for a citation in cases of writs of error, does not apply to cases of appeal. Where the appeal is prayed and granted in the court below, the parties are bound to take notice of it. Mason, in answer to a question from the Chief Justice, stated that he conceived that an appeal might be allowed at any time within five years, in the same manner as writs of error. The words of the last act of Congress upon the subject are peremptory, "appeals shall be subject," &c. If there is no citation, the appeal cannot be a supersedeas, but perhaps the want of a citation is not a sufficient ground to dismiss the appeal. On a subsequent day in the same term, the Chief Justice stated it to be the opinion of the Court, that the appeal having been prayed, pending the court below, a citation is not necessary; and, therefore, the case is properly before the court. February 6th, 1805. The case was now'argued by E. J. Lee and C. Lee, for the appellant, and by Mason, for the appellees.1 E. J. Lee. If the plaintiff's attorney at law make a contract with the defendant, by which the plaintiff's demand is satisfied, it binds his client. So he may leave the matter to reference, and the client will be bound by the award. The 350*] answers of Smith and Beall *are contradicted in a material point, and the rule in equity is, that if the defendant's answer is false in a material point, it shall not be taken to be true in the residue. Mr. Smith's answer states that he has availed himself of all opportunities of ascertaining the title, nay, the existence of the land. Robert Long's deposition shows this to be incorrect. Beall's answer states that he never did aver that Reily had paid the money to Smith. This is contradicted by Lloyd Beall's deposition. Another ground of equity on the part of the appellant, is his discharge under the insolvent act of Maryland. He is not precluded from setting it up in equity, because his attorney neglected to plead it at law. No fraud is alleged or suggested in obtaining it; but it is stated, that the discharge was after the District of Columbia was separated from Maryland, and that upon that separation, Reily living in the city of Washington, ceased to be a citizen of Maryland; and that, as the act directs that the Chancellor shall be satisfied that the person applying to him for a discharge was, and is a citizen of Maryland, and as the legislature could not authorize the discharge of a person from his debts, who should not be at the time of the discharge a citizen of Maryland, the discharge was not valid and regular. But the act of Maryland was passed before the change of jurisdiction, and the discharge was only a consequence of what was begun while the legislature had jurisdiction. By the act of cession by Maryland, and the act of acceptance by Congress, it is provided that the operation of the laws of the state should not cease nor be affected by the acceptance until the time fixed for the removal of the government, and until Congress should otherwise by law provide. The time appointed for the removal of the government was the first Monday of December, 1800, but Congress did not provide by law for the government of the District of Columbia until the 27th of February, 1801. The insolvent act passed on the 3d of January, 1800. On the *15th of April, 1800, the Chancellor pass-[*351 ed an order that Reily give notice to his creditors to appear on the 3d of November, 1800, on which day, notice having been given, the oath of an insolvent debtor was administered to Reily by the Chancellor, and a trustee appointed. On the 23d of December, 1800, Reily conveyed all his property to the trustee, who on the same day gave bond for the faithful performance of the trust, and a receipt for the effects. Thus every thing was done by Reily on his part, to entitle him to a discharge before the operation of the law of Maryland ceased. The Chancellor, therefore, having the cause before him, and having once had jurisdiction, could not be deprived of it by the separation of the territory. If a crime had been committed within the District of Columbia before the 27th of February, 1801, it must have been punished according to the state law of that part of the district in which it was committed. Besides it is worth consideration whether, as the debt was due to Beall, who always remained a citizen of Maryland, it might not be barred by an act of the legislature of Maryland, notwith1.-E. J. Lee, being asked by the Court for a state-standing the debtor had ceased to be a citizen. ment of the case, agreeable to the rule of court, alleged that it was not in his power to make a statement, as it was a question as to the weight of testimony, on contradictory evidence. MARSHALL, Ch. J. The court require a statement of the case, even though the question is a question of fact; at least the substance of the bill and answer, and the facts which are in contest, might be stated. The words of the insolvent act, (November session, 1799,) c. 88, passed January 3d, 1800, 3, are, 3. And be it enacted, That no person herein before mentioned, shall be entitled to the benefit of any of the provisions of this act, unless the Chancellor shall be satisfied, by compe 1804 REILY V. LAMAR, BEALL AND SMITH. tent testimony, that he is, and at the time of passing this act was, a citizen of the United States, and of this state, and unless at the time of presenting his petition as aforesaid, he shall produce to the Chancellor the assent, in writing. of so many of his creditors as have due to them the amount of two thirds of the debts due by him at the time of the passing of this act; provided, that foreign creditors, not residing in the United States, and not having agents or attorneys residing therein duly empowered to act in their behalf, shall not be considered within the intent and meaning of this clause; and provided also, that the Chancellor may, without the assent 352*] of the creditors as aforesaid, from time to time,order to be discharged from custody any of the said petitioners who may be in actual confinement, in virtue of any process issued, or that may be issued, in pursuance of any debt at this time due and owing by him, which discharge is hereby declared to be a release only of the person of such debtor, but not of his property, unless the assent in writing of two thirds in value of the creditors as aforesaid be obtained." It was only necessary that the Chancellor should be satisfied that Reily was a citizen of Maryland at the time of passing the act, and at the time of his application to the Chancellor for its benefit; and these facts are not denied. Mason, contra. There are only two questions in this cause. 1. Has Reily any equity on the ground of having paid the judgment? 2. Has he any equity on the ground of being released by the act of Assembly? 1. It is admitted that he has an equity if all the facts stated in the bill are true. But the bill itself is not evidence. The answers of Smith and Beall deny all the equitable facts, and there is no evidence to prove them. The controversy is really between Reily and Smith, for it is not alleged that Beall has been satisfied, unless the payment to Smith is proved, and binds Beall. But as the evidence does not prove a payment to Smith, there is an end of the first point. Having removed from the city of Washington to Alexandria, which is subject to different laws, the discharge could not avail him there. There is no evidence that Beall was a citizen of Maryland, and therefore the argument that the legislature of Maryland might bar him from a recovery of the debt, although Reily should not appear to be a citizen, does not apply. CHASE, J. Would not the proper remedy be, by motion, to discharge the property taken on the fieri facias, if it appeared to be property which came to the wife by devise? E. J. Lee. Although that might be done, yet it is not the only remedy. It might be too late on the return of the execution, when the property might be sold. MARSHALL, Ch. J. Could the court have gone on to decree Smith to pay the money to Reily, and dismiss *the bill as to Beall? [*354 Was the cause in such a state that this could be done? C. Lee and Mason admitted that they might. CHASE, J. Can an attorney at law, by a contract for the purchase of land to himself, bind his client? C. Lee, in reply. We do not contend for the principle to that extent; but if Beall assented to the payment to the attorney in that way, it would bind him in equity. So if the attorney has the money of the debtor in his hands, and upon a settlement with the debtor the attorney retains the debt of his client, and gives the debtor a check for the balance, the client is bound. If Smith did undertake to settle this debt, it binds Beall. But if not, yet Reily has a claim against Smith, and the court below ought not to have dismissed the bill as against him. There is no doubt of Reily's equity as to Smith. He does not even allege that he ever paid Reily for the lands. He has not produced the bank book, as he was required to do, which would have shown the check of 17 dollars. As to the discharge under the insolvent act; if it was good in Maryland, it was good in every part of the United States. That it was obtained fairly, legally, and regularly, appears from the certificate itself; which is at least prima facie evidence of those 1 Dall. 229, Millar c. Hall. The circumstances; and the contrary must be proved if alleged. present case is stronger than that of Millar and Hall; because here both parties were citizens of Maryland, but in that, Millar was a citizen of Pennsylvania. 2. As to the discharge under the insolvent law. It is a principle that if a man has a defense at law and waives it, he shall not avail himself of it in equity. This is a defense which pecu353* liarly requires that it should have been pleaded at law. The plea would have embraced There is certainly an error in the copy of all the facts which were necessary to show that he was regularly discharged, any of which the the certificate of discharge filed in this case, in plaintiff might have traversed and put in issue. stating the deed of Reily to his trustee to be The bill alleges he was regularly discharged. dated the 23d of March, instead of the 23d of The answer denies it, and puts him upon the December; for the certificate of the trustee, by proof. How has he proved it? By the Chan-which he acknowledges the receipt of all the cellor's certificate only; and that was made on effects of Reily, is dated on the 23d of Decemthe 10th of April, 1801, when, according to the ber, and so is the trustee's bond. allegations in the bill, he was not a citizen of Maryland, but of the District of Columbia. The bill states, that the property on which the fieri facias was levied, was a devise to his wife, or the proceeds thereof. The answer denies it, and there is no proof. The bill charges that he directed his attorney at law to plead the discharge. The answer denies it, and there is no proof, although the attorney himself was examined as a witness for the complainant. If the deed was executed on the 23d of December, the case is clear of all doubt, for the inhabitants of that part of the District of Columbia which was ceded by Maryland, *re- [*355 mained citizens of Maryland, and subject to all her laws, until the 27th of February, 1801, when Congress first provided by law for the government of the district. Laws of United States, vol. 1, p. 132. Resolve of Maryland, 1788. Laws of Maryland, November, 1791, c. 45, 2. Laws of United States, col. 5, p. 268. 303 |