ception in society, his calling her to renounce her dower, are evidence to authorize the jury to draw the conclusion that Mr. Jewell and Sophie Prevost had concluded and agreed to become and live together as lawful husband and wife prior to 1810; and if so, the separation does not affect the right of the children of that marriage; they are legitimate.

And the said justices refused the third instruction prayed by the plaintiffs. And as to the sixth instruction prayed by the plaintiffs, the said justices instructed the jury, that "if the contract be made per verba de presenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve; and it is equally binding as if made in facie ecclesiæ." (2 Kent's Com., 86, 3d edit.) To which refusal and instruction the plaintiffs except. And the said justices gave the first instruction prayed by the defendants, to which the plaintiffs also except.

Messrs. Cor and Legaré, Attorney-General, for the plaintiffs in error.

Mr. Hunt for defendants.

The following were the points relied upon on the part of the plaintiffs in error:

1. That the declarations of Simons ought to have been admitted in evidence.

Mr. Hunt, for defendants:

As to what constitutes marriage, Bracton, bk. 1, p. 4, ch. 5, sec. 7; Swinburne on Espousals, 198, also 5, 6, 7, 223, 224, 226, 227, 234; Taylor on Civil Law, 254, 258, 268, 277, 279; 1 Milton's Paradise Lost, as to the ceremony which took place on the first marriage; 4 McCord, 256; 18 Johns., 347; 4 Johns., 53; 2 Bl. Rep, 877; 1 Dow's Rep., 176, 181; Moore, 170; Manuscript Cases in South Carolina, Strongfellow v. Strongfellow, also Billings v. Billings, decided by Chancellor Harper; 1 Price's Rep., 83; 6 Mod., 172; 1 Dow's Rep., 189.

*As to the admissibility of the news- [*228 paper evidence, case of The Berkeley Peerage (4 Camp., 401).

As to Simons' declarations, no time or circumstances are mentioned when they were made and he does not testify to general reputation. Mr. Legaré, for plaintiffs:

As to Simons. His declarations were against his interest. Old coats-of-arms, tombstones, &c., all now admitted. (1 Peters, 337; 13 Ves., 514; Cowp., 591, 594; 2 Russ. & Mylne, 147, 156; 2 Cond. Ch. Rep., 431; Greenl. on Evidence, 159.)

As to the newspaper, 7 Peters, 100; Pothier, 295, 296; 6 East, 192; 2 Russ. & Mylne, 435. As to what constitutes marriage, 6 Serg. & Rawle, 333; 10 Johns., 226, analogous cases of

3. That Mrs. Storne was clearly incompetent as a witness, if her testimony was true, she having been the wife of Jewell. She 227*] *was also interested in the event of the cause. (This point, however, was not in the bill of exceptions, and was not discussed.)

4. That the instructions asked for by the plaintiffs, and refused by the court, ought to have been given.

5. That there was error in the instruction given at the request of the defendants.

Mr. Coxe, for plaintiff in error, entered into a particular examination of the testimony, all of which was before the court, in consequence of the refusal of the court below to grant the third instruction prayed by the plaintiffs, which was, "that if the jury did not believe that Benjamin Jewell and Sophie Prevost were married by a magistrate in Savannah in the year 1796, or before that time, then there was no evidence of a marriage before them."

This investigation, as also that of the counsel who argued the case subsequently, is omitted in the report.

As to the admissibility of Simons' declarations, 1 Stark., 59, 2 Eng. Com. Law, 293; 1 Maule & Selw., 636; 1 Stark., 69, 2 Eng. Com. Law, 299; 10 East, 282; 13 Ves., 140; 1 Peters, 328.

As to the admissibility of the publication in the newspaper, 2 Stark., 66, 165, 166, 3 Eng. Com. Law, 247, 296. That gazette is good evidence to prove public notice 10 Cond. Ch. Rep., 217.

As to what constitutes marriage, Dalrymple v. Dalrymple (4 Condensed Ecclesiastical Reports, 485, 488, 489); 4 Bac. Abr., title "Marriage;" Easterly v. Easterly (Dyer, 305); Bac. Abr., pl. 60; Buller's N. P., 101, 102; 3 Dane's Abr., 294, 299; 18 Johns., 349; 7 Wend., 51; 10 Watts, 158, 161, 162.

348; 4 Johns., 52; 2 Dow, 462; Cunningham v. Cunningham (2 Dow, 504); North v. Valek, (Dudley's Ch. Rep.); 6 Binney, 405; 2 Dane's Abr., 302; 2 Cowen's Phillips, 354, collection of cases; Alderson v. Clay (1 Stark. Rep., 405); 2 Eng. Com. Law, 445; 2 Stark. on Evidence, 590, 688; Kelly v. Jackson (6 Peters, 622, 62); Greenl. on Evidence, 39; 4 Hag. Ec. Rep., 519; Dalrymple v. Dalrymple was a clear case of verba in presenti; "accipio te."

As to the proof offered that none but the legitimate children of the Jews are circum cised, Gen. xvii., 9.

On the general subject of marriage, Planke', History of Christian Society, Vol. I; Pothier 5, 30, 38, 39; Swinb., 27, 231, 227; Collins v Jethro (6 Mod., 155); 3 Dane's Abr., title. "Marriage," 301, that the canon law was never adopted in this country; Brown v. United States (8 Cranch, 110); 3 Dall., 281; 2 Bibb' Rep., 343.

Mr. Chief Justice TANEY delivered the opinion. of the court:

This is an action of ejectment brought by the plaintiffs in error against the defendants, to recover a house and lot in the city of Charles ton, in South Carolina. The plaintiffs claim. to be the lawful wife and children of Benjamin Jewell, deceased, who, it is admitted, died in testate and seized of the premises in question. The defendants also claim to be the lawful children of the same Benjamin Jewell, by Sophie Storne, who, before her marriage, was named Sophie Prevost, who is still living and has conveyed all her interest to her [*229 children, and the rights of the parties depend altogether upon the validity of this marriage. At the trial in the Circuit Court, the verdict and judgment being in favor of the defendants, the case is brought here by a writ of error, sued out by the plaintiffs.

members is admissible, although he does not mention the source from which he derived his nformation; and such declarations are equally admissible whether his connection with the family is by blood or marriage. In the case of Vowles v. Young (13 Ves., 140), testimony precisely similar to that now offered was received; and we think the declarations of Simons ought to have been admitted, and that the Circuit Court erred in rejecting them.

232*] The second point in this exception was upon the admissibility of the advertisement in the Charleston Courier; and upon this point also we differ in opinion with the Circuit Court. It was admitted that the parties had cohabited together for a long time, and that the defendants were the issue of that intercourse: and in order to prove that their mother was married to Jewell, the acts and declarations of the parties during their cohabitation were offered in evidence by the defendants (and were unquestionably admissible), to prove that during that time she was acknowledged and treated by Jewell as his lawful wife. Acts and declarations were also offered on the parts of the plaintiffs to prove the contrary. The separation took place in December, 1810, in Charleston, where the parties had lived together for many years, and this advertisement appeared in the principal commercial paper of the place in the January following. It was offered by the plaintiff, like the acts and declarations above mentioned, on his part to rebut the testimony which had been given by the defendants; and this advertisement would manifestly have been admissible on the same rules of evidence, if it had appeared while the parties were still living together or at the moment of separation. And although they had parted a short time before the publication, yet it followed so immediately afterwards, that it must be regarded as a part of the res gest, and as one of the circumstances connected with the separation and previous cohabitation. Whether it was inserted by Jewell or not; and if it was, what were his motives for so doing, are questions for the consideration of the jury, and not for the court. The plaintiff had a right to show the fact that such an advertisement did appear at the time mentioned, and it was with the jury to determine the degree of weight, if any, to which this fact was entitled, taking into consideration all the circumstances under which it appeared.

As relates to the points contained in the second exception, we think the court were right in refusing the third instruction requested by the plaintiffs. In order to explain the question intended to be raised by this prayer, it is proper to state, that in addition to the testimony of Sophie Storne, herein before mentioned, certain acts and declarations of the parties, which it is not necessary to set forth at large, were given 233] in evidence by the defendants, *by other witnesses, to prove that the parties were married at Savannah, about the time mentioned by Sophie Storne, and before they cohabited together. The plaintiff, on the contrary, in order to prove that they were not married, and that she went to live with him as his concubine, offered in evidence a paper purporting to be signed by the parties, and dated March the 10th, 1796, by which there was an open and plain agreement on her part to become the mistress

of Jewell. The paper is gross and indecent in its language, and it is unnecessary to state more particularly its contents. The third instruction asked for by the plaintiff is founded upon the assumption that this paper is genuine, and insists that if the marriage did not take place before its date, then the intercourse began under this agreement, and their subsequent cohab itation must be presumed to have been of the same description, unless an actual marriage afterwards was proved. But the answer to the argument is, that the authenticity of the paper is denied by the defendants, who contend that it was fabricated by Jewell, or, if signed by Sophie, that she was entrapped and deceived, and ignorant of its contents. The question, therefore, is open to the jury, upon the whole evidence, to determine upon what terms and in what character the connection originally began; and the evidence offered by the defendants, that they lived together for so many years as man and wife, and treated and spake of each other as such, are certainly admissible to show that a marriage had taken place between them at some time or other, and whether before or after the date of the paper could not be material.

The residue of the instructions contained in this exception all involve the question as to what constituted marriage at the time of this cohabitation, by the laws of Georgia and South Carolina. The question has, of course, no concern with the nature and character of the union of man and wife in a religious point of view. But regarding it (as a court of justice must do) merely as a civil contract, and deciding in what form it ought to have been celebrated in order to give the parties the legal rights of property which belong to the husband or the wife, and to render the issue legitimate, the Circuit Court held, and so instructed the jury, that if they believed that, before any sexual connection between the parties, they, in the presence of her family and friends, agreed to marry, [*234 and did afterwards live together as man and wife, the tie was indissoluble even by mutual consent. And that if the contract be made per verba de presenti, and remains without cohabitation; or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being com petent as to age and consent) cannot dissolve, and that it is equally binding as if made in facie ecclesiæ.

Upon the point thus decided, this court is equally divided; and no opinion can therefore be given. Upon the questions, however, contained in the first exception, the judgment of the Circuit Court must be reversed, and a venire de novo awarded.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of South Carolina, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.

Plaintiffs in Error,

V.

THE PRESIDENT, DIRECTORS AND
COMPANY OF THE NEW ENGLAND
BANK, Defendants.

Current account between banks-lien for general balance of account upon paper transmitted for collection.

When there have been, for several years, mutual and extensive dealings between two banks, and an account current kept between them, in which they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all costs of protests, postage, &c.; accounts regularly transmitted from the one to the other and settled upon these principles; and upon the face of the paper transmitted, it always appeared to be the property of the respective banks, and to be remitted by each of them upon its own account; there is a lien for a general balance of account upon the paper thus transmitted, no matter

who may be its real owner.

This case was brought up by writ of error from the Circuit Court for the District of Columbia.

235*] *At the trial in the Circuit Court, it appeared upon the evidence that the Bank of the Metropolis, one of the banking institutions of the District of Columbia, had been for a long time in the habit of dealing and corresponding with the Commonwealth Bank of Massachusetts. They mutually remitted for collection such promissory notes or bills of exchange as either might have, which were payable in the vicinity of its correspondent, which, when paid, were credited to the party who sent them, in the account current kept by both banks, and regularly transmitted from the one to the other and settled upon these principles. The costs and expenses, such as protests and postage, were, of course, charged in such account.

The balance was sometimes in favor of one, and sometimes of the other. On the 24th of November, 1837, the Bank of the Metropolis was indebted to the Commonwealth Bank in the sum of $2,200, and in the latter part of the year 1837, the Commonwealth Bank transmitted to the Bank of the Metropolis, for collection in the usual way, sundry drafts, notes, and other commercial paper which would fall due in the ensuing months of February, March, April, May, and June. They were indorsed by E. P. Clarke, cashier, and made payable to C. Hood, cashier, and again indorsed by C. Hood, cashier, to G. Thomas, cashier. Clarke was the cashier of the New England Bank; Hood, of the Commonwealth Bank, and Thomas, of the Bank of the Metropolis.

On the 13th of January, 1838, the Commonwealth Bank failed, and on that day Charles Hood, the cashier, wrote a letter to the Bank of the Metropolis, directing them to hold the paper which had been forwarded, as above stated, "subject to the order of the cashier of the New England Bank, it being the property of that institution." When this letter was received, the account was examined, and it was discovered that on that day the Commonwealth Bank was indebted to the Bank of the Metropolis in the sum of $2,900.

The deposition of Charles Hood, which ap

The reading of this deposition was objected to in the court below, and included in the bill of exceptions; but as the objection was not argued in this court, it is presumed to have been abandoned.

The action was brought by the New England Bank against the Bank of the Metropolis, and the judgment in the Circuit Court was in favor of the plaintiff for the whole amount of the proceeds of the notes and bills in question.

At the trial, a bill of exceptions was taken by the defendant (the present plaintiff in error), which, after reciting the evidence, concludes as follows:

Whereupon, the counsel for defendants prayed the court to instruct the jury, that, if they shall believe from the said evidence that the Commonwealth Bank did for a series of years transact business with defendants, and did from time to time transmit notes and other commercial paper to defendants for collection, which were all treated by both parties as if the same were the property of the said Bank of the Commonwealth, who were credited in their ac count current with the proceeds, and charged with the costs and expenses, which accounts were from time to time adjusted upon these principles; that the notes and paper mentioned in said letter of 13th January, 1838, were indorsed and transmitted in the ordinary course of business, without any notification that any other party or person had any interest in said paper, were thus received by defendants, and held by them: that while thus held by them, the said Commonwealth Bank became insolvent or embarrassed in its circumstances, and after such embarrassment the letters aforesaid of the 13th January, 1838, were written, and at the time of their receipt by defendants, said embarrassed state of said Commonwealth Bank was known to defendants, and there was at that period a large balance on general account due defendants from said Commonwealth Bank, and the said paper was all regularly indorsed by the cashier of said Commonwealth Bank to defendants; the said defendants had a right to receive said paper, and the proceeds when recovered, until such balance was paid: and plaintiffs are not entitled to recover; [*237 which instruction, as prayed, the court refused to give.

Mr. Core for the plaintiff in error.
Mr. Bradley for the defendant.

Mr. Coxe argued, 1. As to the law, supposing the Commonwealth Bank and the Bank of the Metropolis to have been the only parties in the transaction; and 2d. How far that law was changed by the intervention of the New England Bank. On the first point, he cited 17 Wend., 100; 1 Ryan & Moodie, 271; 1 Rose's Cases, 280, 80; 5 T. R., 488, 491, 493; 1 Esp. Cases, 66; 2 Blą. Rep., 1154.