sub silentio, and the Court does not consider itself as bound by that case. Mason. But the traverser had able counsel, who did not think proper to make the objection. March 2. MARSHALL, Ch. J.,' delivered the opinion of the Court as follows: This is an indictment against the defendant, for taking fees, under color of his office, as a justice of the peace in the District of Columbia. A doubt has been suggested respecting the jurisdiction of this court, in appeals on writs of error, from the judgments of the circuit court for that district, in criminal cases; and this question is to be decided before the court can inquire into the merits of the case. In support of the jurisdiction of the court, the Attorney General has adverted to the words of the constitution, from which he seemed to argue, that as criminal jurisdiction was exercised by the courts of the United States, under the description of "all cases in law and equity arising under the laws of the United States,' and as the appellate jurisdiction of this court was extended to all enumerated cases, other 173*] than those *which might be brought on originally, "with such exceptions, and under such regulations, as the Congress shall make," that the Supreme Court possessed appellate jurisdiction in criminal, as well as civil cases, over the judgments of every court, whose where the subject in contest has a value [*174 beyond the sum mentioned in the act. But, in criminal cases, the question is the guilt or innocence of the accused. And although he may be fined upwards of 100 dollars, yet that is, in the eye of the law, a punishment for the offense committed, and not the particular object of the suit. The writ of error, therefore, is to be dismissed, this court having no jurisdiction of the case. 200-204, 219; 14 Pet. 603, 607; 3 Pet. 201; 9 How. 572; Cited-4 Cranch. 104; 11 Wheat. 474 (n.); 5 Pet. 14 How. 120; 3 Wall. 254; 7 Id. 34, 385; 18 Wall. 185. 205; 1 Bald. 403; Id. 406; 3 Cliff. 8, 9, 11; Id. 21, B; 10 Otto, 283, 290. FAW C. ROBERDEAU'S EXECUTOR. If an act of limitations have a clause "saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of the commonwealth, three creditor, resident of another state, removes his years after their several disabilities removed," a disability by coming into the commonwealth, even for temporary purposes; provided the debtor be at that time within the commonwealth. THIS was an action in the circuit court of the TD District of Columbia, for the county of the construction of the act of assembly of Alexandria; and the question arose upon Virginia, for "reducing into one the several decisions it would review, unless there should be some exception or regulation made by Congress, which should circumscribe the jurisdiction conferred by the constitution. This argument would be unanswerable, if the acts concerning wills," &c., Rev. Code, p. 169. Supreme Court had been created by law, with-c. 92, 8. 56, which is in these words, viz.: "If out describing its jurisdiction. The constitution would then have been the only standard by which its powers could be tested, since there would be clearly no congressional regulation or exception on the subject. But as the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its powers must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described. any suit shall be brought against any executor or administrator, for the recovery of a debt due upon an open account, it shall be the duty of the court, before whom such suit shall be brought, to cause to be expunged from such account, every item thereof which shall appear the testator, or intestate. Saving to all persons to have been due five years before the death of non compos mentis, femes corert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed." Thus the appellate jurisdiction of this court, from the judgments of the circuit courts, is de- foundation stone lent by the plaintiff to the deThe declaration was for plank, scantling, and scribed affirmatively. No restrictive words are fendant. *For the like materials, sold [*175 used. Yet it has never been supposed that a decis- and delivered, and for money had and received. ion of a circuit court could be reviewed, unless The defendant pleaded the general issue, and a the matter in dispute should exceed the value verdict was taken for the plaintiff, subject to of 2,000 dollars. There are no words in the act the opinion of the court, upon the following restraining the Supreme Court from taking cog-facts: nizance of causes under that sum; their jurisdiction is only limited by the legislative declara: tion, that they may re-examine the decisions of the circuit court, where the matter in dispute exceeds the value of 2,000 dollars. This court, therefore, will only review those judgments of the circuit court of Columbia, a power to re-examine which is expressly given by law. On examining the act" concerning the District of Columbia," the court is of opinion, that the appellate jurisdiction, granted by that act, is confined to civil cases. The words matter in dispute," seem appropriated to civil cases, by the defendant's testator to the plaintiff, in That the debt found by the verdict was due the year 1786. That the testator died in 1794. The plaintiff was a resident of, and in the wealth of Virginia, when the articles were destate of Maryland, and out of the commonlivered for which the suit was brought, and when the debt was contracted; and continued so in Maryland, and out of the said commonwealth, until the month of June, 1795, when he there ever since. That in the year 1786, after removed to Alexandria to live, and hath lived 2. See the case of The United States v. La Vengeance, 3 Dall. 297, where it seems to be admitted. 1.-Johnson, J., was absent when this opinion that in criminal cases the judgment of the inferior was delivered. court is final. the cause of action accrued, the plaintiff passed through the town of Alexandria, and was for a short time therein, but not as a resident thereof." Upon this statement of facts, the judgment of the court below was for the defendant; and the plaintiff brought the present writ of error. E. J. Lee, for the plaintiff in error. The plaintiff was not a citizen of Virginia, when the debt was contracted. It does not appear that he did not commence his action within the limited time after his becoming a citizen. WASHINGTON, J. Does it not appear that Faw was in Virginia after the cause of action accrued? E. J. Lee. Only as a traveler. It does not appear that the testator lived in Virginia at that time. The plaintiff had three years to bring his action, after removal into Virginia. The writ is no part of the record, unless made so by a bill of exceptions, and it is not stated when the action was brought. Swann, contra. The act of limitation begins to run from the time the plaintiff passed through Alexandria, after the cause of action 176*] had accrued. His disability, *(according to the expression of the act of assembly) was then removed, and he ought to have brought his action within three years from that MARSHALL, Ch. J. That act has nothing to do with the lapse of time after the death of the testator. The five years are before his death. The three years are also three years during the life of the testator, and the plaintiff must, therefore, have been in the state three years, during the life of Roberdeau, to make the limitation attach to his claim. The Court will hear you upon that point if you think this opinion not correct. Swann said, that no objection occurred to him at present. MARSHALL, Ch. J. The Court is satisfied with that opinion, unless you can gainsay it. WASHINGTON, J. There is another point. Did not the plaintiff's coming into the state in 1786, after the cause of action accrued, cause the limitation to attach? MARSHALL, Ch. J. Beyond sea, and out of the state, are analogous expressions, and are to have the same construction. The whole case turns upon the question, whether the plaintiff's being in the state, in 1786, after the cause of action had accrued, takes him out of the saving clause.1 E. J. Lee. The casual coming into the state is not within the meaning of the act. It means the coming in to reside. The "act for the limitation of actions," &c., Revised Code, p. 116, 13, speaks of persons residing beyond seas, or out of the country. If, in such case, the plaintiff has a factor in this country, the statute runs against him; but if no factor, then it does not. Suppose the plaintiffs should be foreign partners, and one of them should be driven by stress of weather into a remote part of the state, he may be ignorant of the place of residence of his debtor. Shall the plaintiffs, in such case, be barred by the act of limitation? The case in 2 W. Bl. 723, turned upon the question of residence. I can find no positive authority. I believe the point has never been expressly decided. March 2. MARSHALL, Ch. J., after stating There being a general verdict for the plaintiff, the case, delivered the opinion of the Court. it is necessary, in order to justify a judgment. for the defendant, that the statement of facts, upon which he relies, should contain all the such a judgment; otherwise the judgment must circumstances necessary to support [*178 be rendered upon the verdict for the plaintiff. of the act of assembly, must have elapsed beThe five years mentioned in the 56th section fore the death of the testator. If they did not, no lapse of time after his death can bring the present case, the five years had elapsed. But case within the purview of this act. In the there is a saving clause, in the following words: "Saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed.' was within the commonwealth of Virginia, in It is one of the facts stated, that the plaintiff and hence it is argued that he is not within the the year 1786, after the cause of action accrued: saving clause of the section, and that, to exclude him from the benefit of that clause, it is not necessary that he should have become a resi dent of that state. Swann. The words of the act are, "saving in which this question has been decided. We The Court has not been able to find any case to persons out of this commonwealth," not per- are, therefore, obliged to form an opinion from sons residing out of this commonwealth. Being "out of the commonwealth" is the disabil-a consideration of the act itself. The words of the act are, out of this commonwealth," and ity; coming into the commonwealth, therefore, such persons may bring their actions within is a removal of that disability. If the saving three years after their disability" removed. had been to persons residing out, &c. then possibly, a mere coming in, without residing, would not have been a removal of the disability. 3 Wils. 145, Strithorst v. Græme. 177*] *E. J. Lee. Under the British stat. of 1 James, c. 16, § 3, the plaintiff must have been a resident in England; and he then has six years after his return. Here the plaintiff was not a resident of Virginia at any time dur removed at the moment when the person comes The Court is of opinion, that the disability is into the commonwealth; and he must bring his action within three years from that time. But something further than this was necessary to authorize a judgment for the defend 1.-See the case of Duroure v. Jones, 4 T. R. 300 which seems decisive as to that point. ant. It ought to have appeared that Roberdeau was a resident of the state of Virginia at the time the plaintiff came into that state in 1786; and that fact is not in the case stated. The judgment, therefore, ought to have been for the plantiff, and not for the defendant. Judgment reversed, with costs, and judgment entered for the plaintiff on the verdict. C. Lee, for the petitioner, contended, that this was a final decree as to Ray, and cited 2 Fowler's Exchequer Practice, 195, to show that such a decree would, in England, be considered such a final decree as would authorize an appeal. March 5. MARSHALL, Ch. J. We can do nothing without seeing the record, and the papers offered cannot be considered by us as a Cited 16 Pet. 301; 7 How. 865; 20 How. 434; 1 Cliff. record. 433; 18 Wall. 249; 7 Otto 637. A decree for a sale of mortgaged property, upon a bill to foreclose, is a final decree, from which an appeal will lie. Lally baviva a moun, and Ray having a sub AW having a mortgage on real estate in the sequent mortgage on the same estate, Law had filed his bill in chancery in the circuit court of the District of Columbia, for a foreclosure and sale of the mortgaged property, and made Ray a defendant. The bill having been taken for confessed against Ray, a decree was obtained by Law for a sale. The sale had been made under the decree, and notice given, that on a certain day the sale would be ratified unless cause was shown. On that day Ray appeared, but not showing good cause, in the opinion of the court, the sale was confirmed. Ray prayed an appeal to this court on the decree for the sale, which the court refused, on the ground, as it is understood, that the decree for the sale was not a final decree in the cause. Ray on this day presented a petition to this court setting forth those facts, among others, praying relief, and that this court would direct the court below to send up the record. At the same time he produced sundry papers, purporting to be the substance of that record, but not properly authenticated. MARSHALL, Ch. J. The act of Congress points out the mode in which we are to exercise our appellate jurisdiction, and only authorizes an appeal or writ of error on a final judgment or decree. NOTE. Usury must be specially and fully pleaded. The material facts constituting the usury must be fully set forth in the plea or answer, and the proof must correspond to the facts alleged, otherwise the defense must fail. Archer v. Shea, 14 Hun, 493. Morford v. Davis, 28 N. Y. 481. Bk. of Auburn v. Lewis, 19 Alb. L. J. 178. Fay Wheaton v. Voorhis, 53 How. Pr. N. Y. 319. Manle v. Crawford, 14 Hun, 193. Heywood v. Frank v. Norris, 57 Ill. 138. Bush v. Bush, 7 Monr. (Ky.) 53. Murray v. Crocker, 1 Scam. (Ill.) 212. Where complaint precludes plea of usury defendant may give it in evidence. Arnold v. Angell, 62 N. Y. 508. At common law the plea of usury must set forth, amount of loan, time for which loan was made, amount of the usury paid or agreed to be paid, the parties in full to the usurious agreement, and that the agreement was a corrupt and usurious one. Cases cited above and Moody v. Hawkins, 25 Ark. 191. Where law of another state is relied on to establish usury both law and fact must be pleaded. Court *The Court, however, is of opinion, [*180 that a decree for a sale under a mortgage is such a final decree as may be appealed from. We suppose, that when the court below understands that to be our opinion, it will allow an appeal, if it be a case to which this opinion applies. Distinguished-10 Wheat. 504. Cited-23 Wall. 409; 13 Pet. 15; 19 How. 286; 7 Wall. 346; 17 Id. 17; 2 Black 31; 3 McAr. 533; 3 Sum. 507. ERI RROR to the circuit court of the District of This was an action of assumpsit, by Levy, the indorsee of a promissory note, against Gadsby, payce and indorser of M'Intosh's note. The declaration consisted of three counts. The 1st, in addition to the common averments, alleged, that the plaintiff had brought suit upon the note against M'Intosh, in Maryland, and recovered judgment, but that before execution made M'Intosh died insolvent. The 2d count was in the usual form, excepting that it alleged that Gadsby became liable by the custom of merchants. The 3d count was for money had and received. The defendant pleaded, 1st. Non Valentine v. Conner, 40 N. Y. 248. Conover v. VanMaten, 3 Green N. J. 481. Stuart v. Mechs, & Farm. B'k, 19 John. 505. Strict proof is required. Griggs v. Howe, cited above. Taylor v. Morris, 22 N. J. Eq. 606. Frank v. Morris, 57 Ill. 138. Grant v. Merrill, 36 Wis. 390. Churchman v. Lewis, 34 N. Y. 444. Extrinsic evidence may be introduced to prove; defendant not concluded by face of contract. Scott v. Lloyd, 9 Pet. 418. Wetter v. Hendestry, 16 Md. 11. Where usury is an inference merely from facts proved it is question for jury only. Train v. Collins, 2 Pick. 145. Whether contract is a cloak for usury is for the jury. Stevens v. Davis, 3 Met. 211, 212. 1805 LEVY V. GADSBY. 3d. The 3d bill of exceptions was to the opinion of the court, that the agreement mentioned in the receipt given by Levy to M'Intosh, having been read in evidence, and having been, by the court, declared a usurious agreement, the note given in pursuance thereof is void, and that the plaintiff is not entitled to recover there assumpsit; 2d. As to the first count, usury be- | The plaintiff's counsel then objected to its going tween M'Intosh and Levy, stating the transac-in evidence on the general issue of non assumption as a loan by the latter to the former; 3d. sit, but upon that issue, the court admitted it. 2d. The 2d bill of exceptions, after repeating As to the first count, usury between the same parties, stating the transaction as a forbearance the same facts, states, that the plaintiff's counof an antecedent debt. The 4th and 5th were sel prayed the opinion of the court, and their The instruction to the jury, whether the circumstanlike pleas of usury to the second count. 3d and 5th pleas, by mistake, alleged the note ces given in evidence as aforesaid, amounted to given, in pursuance of the corrupt agreement, to proof of a usurious contract between Levy & be a note made by Gadsby to M'Intosh, and by M'Intosh; and the Court, thereupon, instructed him indorsed to Levy; whereas, the note in the the jury, that those circumstances did amount declaration mentioned, was a note made by to proof of a usurious contract between those M'Intosh to Gadsby, and by him indorsed to parties. Levy. To the pleas of usury, there were general replications and issues, and a general verdict On the trial three 181*] for the defendant. bills of exception were taken by the plaintiff. 1st. The first stated that the plaintiff gave in evidence a promissory note in the usual form, dated November 1, 1797, whereby M'Intosh, six months after date, promised to pay to Gads-on against the defendant in the present action. by, or order, 1,436 dollars and 62 cents, for value received, negotiable at the bank of Alexandria. And it was proved that Levy and M'Intosh carried on trade and commerce in copartnership, under the name and firm of Levy & M'Intosh, at Alexandria, Levy residing at Georgetown, about 8 miles distant from Alexandria. That they so continued to carry on trade and commerce from some time in the year 1796, till the 12th day of November, 1797, on which day the partnership was dissolved; and that the dissolution was advertised in the public papers, on the 19th of October, 1797, to take place on the said 12th day of November, 1797. And the defendant, to support the issues on his part, offered in evidence a paper in the handwriting of the plaintiff, and by him subscribed, as follows: Re"Georgetown, November 9th, 1797. ceived of Mr. John M'Intosh, his two notes, one payable to John Gadsby for fourteen hundred and thirty-six dollars and sixty-two cents, dated the first instant, negotiable at the bank of Alexandria, at six months after date, indorsed by said Gadsby; the other to Thomas J. Beatty, of same date, at three months after date, for twelve hundred and seventy dollars and eightyseven cents, negotiable at the bank of Columbia, and indorsed by said Beatty. The two notes making the sum of two thousand seven hundred and seven dollars and forty-nine cents, which, when paid, is on account of money due me from the firm of Levy and M'Intosh, equal to two thousand two hundred and ten dollars and twenty-four cents, as by their account, handed me by the said M'Intosh, dated October 23d, 1797; and as the said M'Intosh agrees he is receiving an interest equal to the difference twixt the sum due me, as per their account current, and the notes payable, he, therefore, allows me the same interest as the one he is receiving for my money. Therefore, on a settlement of 182*] accounts, I am *only to stand debited for twenty-two hundred and ten dollars and twenty-four cents (2,210 dollars and twenty-four cents), due as per account current; 497 dollars and 25 cents interest; 2,707 dollars and 49 cents. "N. LEVY." The plaintiff's counsel objected to the said writing being given in evidence by the defend ant on the pleas of usury, and the Court refused to permit it to go in evidence on those pleas. Swann and Simms, for plaintiff in error. C. Lee, Mason and Jones, for the defendant. The questions arising in this case are, 1st. Whether the court below was correct in instructing the jury, that the agreement contained in Levy's receipt was usurious. 2d. Whether that receipt was admissible in evidence upon the issue of non assumpsit; and, 3d. Whether it was admissible upon either of the other issues. [*183 *Swann, for the plaintiff in error. 1. As to the usury. The court below undertook to say that the agreement and other circumstances amounted to conclusive proof of usury, when it ought to have been left to the jury, under all the circumstances of the case, to say whether the contract was usurious or not. There appears to have been a partnership in usury between Levy and M'Intosh. During that partnership, M'Intosh had loaned Levy's money at usury, and on the 23d of October, 1797, was indebted to Levy in the sum of 2,210 And being satisfied that he dollars and 24 cents, for money thus lent out at 3 and 6 months. should receive that money at those periods, he was willing to bind himself absolutely to pay it over to Levy, whose money it in truth was. This, we say, is the true construction of the receipt. It is no more than the case of an agent binding himself to pay over, at a particular time, the money of his principal which shall at that time be in his hands. To constitute usury under the act of assembly, Rev. Code of Virginia, p. 37, there must be either a loan of money, or forbearance of a debt already due. In this case there was neither a loan from Levy to M'Intosh, nor a debt due A note given without consideration from M'Intosh to Levy. Corp. 115, Floyer v. M'Intosh was to receive the Edwards. He is not usurious. money at a certain time, and pay it over to At the Levy. This is the whole of the contract. only bound himself expressly to do what in equity and conscience he ought to do. time the notes were given, if Levy had sued M'Intosh for the money, it would have been a received it. sufficient answer to say that M'Intosh had not If I authorized a man to lend 1,000 dollars of my money on usury for my benefit, and he does so, and has received 500 dollars for such usury, can I not compel him to pay it over to 405 me? This is really the only question upon the merits of this case; and this seems to be decided by the case of Faikney v. Reynous, 4 Burr. 2069, and that of Petrie v. Hannay, 3 T. R. 418, in which it was held that if two be engaged in a transaction illegal, but not malum in se, and one 184*] of them pay the whole money, he *may recover a proportion from the other, if this other has expressly promised to pay it. From hence it may be inferred, that although the original transaction between M'Intosh and the person to whom he lent the money on usury was illegal, and although Levy knew all the circumstances, and assented to the transaction, yet, inasmuch as it was not malum in se, and M'Intosh agreed to pay over the money to Levy when received. the illegality of the original transaction shall not discharge M'Intosh from such agreement, or render it void. Simms, on the same side. An objection was made in the court below, to allowing usury to be given in evidence on the plea of non assumpsit, but it was overruled by the court. If there had been no other plea, perhaps the question would be doubtful; but when the defendant has pleaded usury in a particular way, he ought not to be permitted to resort to a different kind of usury. Tate v. Wellings, 3 T. R. 538. It tends to surprise and entrap the plaintiff. C. Lee, contra. 1st. Whether usury can be given in evidence on non assumpsit. Every thing which goes to show that the contract is void, may be given in evidence on that plea; for if the promise was void when made, then, in law, it was no promise. Str. 498, Bernard v. Saul; 2 Str. 733, Burrows v. Jemino; 1 Esp. Rep. 178. Jones, on the same side.. The evidence offered was not only applicable to the general issue, but to the first special plea of usury. The agreement shows it to be a loan in the sense of the statute. No precedent can be found of a plea of usury which does not state it as a loan. The cases cited do not apply. The agreement itself does not state it to be accounting for profits received. But M'Intosh gives an absoÎute note for the payment of money, although it is agreed that it is outstanding. The question is upon a written agreement, and the construction of all such agreements is exclusively with the court. *March 4. MARSHALL, Ch. J., deliv- [*186 ered the opinion of the court. It was slightly contended by the counsel for the plaintiff in error, that when usury has been specially pleaded, and the evidence adduced to support such plea has been adjudged by the court to be inapplicable to the facts so pleaded, the same evidence cannot be admitted upon the plea of non assumpsit. No cases in support of this position have been cited, and it does not appear to be supported by reasoning from analogy. In cases where there are special and general counts in a declaration, and the evidence does not support the special counts, the plaintiff is allowed to apply the same evidence in support of the general counts. parity of reasoning, the defendant should be permitted to give in evidence, upon the plea of non assumpsit, the same facts which were adjudged inapplicable to the special pleas, but which might have been received on the general plea, if the special pleas had not been pleaded. On a There being two special pleas of usury makes The counsel for the plaintiff has also conno difference, the court having been of opinion tended, that although the paper writing prothat the evidence did not support those pleas. duced would, on the face of it, import a 2d. As to the construction of the agreement. usurious contract, yet, as the jury might pos If the usury is reserved for forbearance of a sibly have inferred from it certain extrinsic debt already due, it is the same thing as if re- facts, which would have shown the contract served on an original loan. 1 Call, 4, 81. Gib-not to have been within the act, the jury ought son. Fristoe. And it makes no difference whether the usurious interest is stated to be received from others or not. Usury is not to be covered by such devices as that. It is only an indirect way of receiving the usury. 185*] *No argument can make the transaction plainer than it is stated in the receipt itself. Res ipsa loquitur. to have been left at liberty to infer those facts. But in this case the question arises upon a written instrument, and no principle is more clearly settled, than that the construction of a written evidence is exclusively with the court. This Court is of opinion, that the court below has correctly construed the instrument upon which the question arose, and that, therefore, there is no error in the judgment. Judgment affirmed, with costs. Distinguished-7 Pet. 108. Mason, on the same side. There can be no ground for the plaintiff to allege surprise in the admission of the receipt as evidence on the general issue. The special pleas set forth precisely the same facts, and nothing but a blunder 72; 17 Wall. 18; 1 Biss. 445; 10 Otto 249. in copying the pleas, and inserting the name of M'Intosh for Gadsby, prevented the evidence from being admitted on those pleas. The agreement is, that as M'Intosh is receiving usury from others, therefore he will pay it to the plaintiff. If the debtor receives usury from his debtors, it is no justification of the creditor in demanding from him. There is no evidence that the partnership of Levy and M'Intosh was a partnership in usury. The receipt does not directly aver that M'Intosh is receiving the rate of interest mentioned. It only states that he agrees he is receiving it. A man may agree to a false statement of facts; and, indeed, that is always the case, when usury is attempted to be covered. Cited 4 Cranch C. C. 213; 17 Wall. 142; 3 How. *THE MARINE INSURANCE COM- [*187 PANY OF ALEXANDRIA v. WILSON.1 If a policy upon a vessel have a clause “that if the vessel, after a regular survey, should be condemned as unsound or rotten, the underwriters should not be bound to pay," a report of surveyors, that she was unsound and rotten, but not referring 1.-Present, Marshall, Ch. J.; Cushing, Paterson and Washington, Justices. |