1821. Kerr V. Watts. made under their control and direction. This Court does not feel itself authorized to raise any such presumption. The powers actually exercised by those commissioners, were limited to very few objects. The surveying of entries at a very early period, became a judicial subject. And the commissioners, or rather deputations of officers, never assumed a right to adjust the conflicting interests of individuals upon the locating and surveying of such entries. To appoint surveyors, to superintend and direct the drawing of lots for precedence among the locators, to direct the survey for officers and soldiers not present or not represented, and to determine when the good lands between the Cumberland and Tennessee should be exhausted, comprehended all the powers with which they were vested. As individual agents capable of binding their principals, they appear in one case, and only one, which was, when the officer or soldier was absent and unrepresented. And as to judicial powers, there is no provision of the act that vests them with a semblance of such a power, unless it be to judge of the right of priority as determined by lot. But here, also, they appear more properly in the character of ministerial officers discharging a duty without the least latitude of judgment or discretion. Their powers in nothing resemble that of the Courts of Commissioners established through the back counties of Virginia. As to the subjects submitted to the boards so constituted, (of which military warrants were no part,) those boards were expressly vested with judicial power. But the powers of the deputations of officers were purely ministerial. And if it be admitted, that they might have exercised the power of defining the principles on which surveys should have been made, yet it is certainly incumbent on him who would avail himself of that power, to show that it was exercised, and to bring himself within the rules prescribed by their authority. Decree reversed as to these appellants, and sent back for further proceedings. 1821. Leeds V. The Marine (CHANCERY.) LEEDS et al. v. THE MARINE INSURANCE COMPANY. Application of the law of set-off and lien in Equity, under peculiar circumstances. APPEAL from the Circuit Court for the District of Columbia. This was a suit in Equity, commenced in the Court below by the respondents against the appellants, in which the injunction obtained on the filing of the bill was made perpetual. The facts are stated in the opinion of the Court. This cause was argued by Mr. Swann and Mr. Jones for the appellant, and by the Attorney-General and Mr. Lee for the respondents. March 9th. 1821. Leeds V. The Marine Mr. Justice JOHNSON delivered the opinion of the Court. This case involves a great many questions both of Ins. Co. law and fact, but we will consider it as it is affected March 16th. by those circumstances, concerning which there is no dispute. Leeds and Straas being engaged in commercial enterprizes, Straas employed Hodgson to effect insurance on the Sophia and her cargo. A note of Hodgson, with Patton and Dykes as endorsers, is taken for the premium. Another adventure on the brig Hope, grows out of the first, on the Sophia; and the same agent, at the request of the same principal, effects insurance upon this also, with the same Company. The Sophia arrives in safety, but though one of the endorsers is unquestionably sufficient, the premium note remains unpaid. The Hope is lost, and Hodgson professedly suing for the use of Straas and Leeds, has recovered judgment against the underwriters for the amount of the policy. From this amount the premium note connected with that policy was discounted, but that growing out of the insurance on the Sophia, was not pleaded, notwithstanding the identity of the legal plaintiff in that action, with the debtor to the company in the transaction on the Sophia. The note taken for the insurance on the Sophia, is now set up against the policy on the Hope, in a different form. This bill is filed to compel the parties in interest, Hodgson, Leeds and Straas, to discount it from the judgment against the underwriters. The equity of this demand is now to be tested. The right to the discount considered with reference to identity of parties, was clearly a legal one. And had not the Company been injoined in the Chancery of Virginia, during the pendency of the suit upon the policy, they must have lost all claim to the interposition of this Court, by failing to assert their legal rights in the Court to which they properly belonged. But the Chancery of Virginia might have considered the Company in contempt, had they set up in discount a claim then pending, and then injoined in the Courts of that State. And, therefore, we may now be justified in considering the legal rights of the Company, against the policy on the Hope, as derived through the premium note on the Sophia, under all the advantages that it would have possessed, if pleaded as a set-off to the action at law. The bill, it is true, does not explicitly rest on this, as the ground of its equity, but the facts are so set out, and may be properly considered as making up the case. What was the state of right as it stood at law? Hodgson, as holder of the policy which he had effected, was, to the amount of his commissions, advances, or even liability incurred in the transaction, a privileged creditor, and that possession could not be violated until he was indemnified or compensated. If he be considered as the legal plaintiff in the action on the policy, and, in fact, the legal owner of the money recovered for the use of others, the law would not suffer him to be deprived by transactions between Straas and Leeds, to which he never assented, of any 1821. Leeds V. The Marine 1821. Leeds V. The Marine legal advantage derived from possession of that money. Suppose, to come up to the very case before us, the Company had pleaded this note as a set-off to the suit on the policy, and Hodgson, the legal plaintiff, had tendered a replication admitting the plea, in what manner could the Company or himself have been deprived of the benefit of its being thus disposed of? That Hodgson was entitled to indemnity from Straas at least, against this note, is unquestionable; and he would, as against Straas, have, under any circumstances, been entitled to retain a sufficient sum to cover his liability. Then how could he, by the act of Straas, either by assigning away his interest, or by impeding by an injunction, that act in a third person, which would have secured him in its consequences, be deprived of the benefit of compelling the admission of this set-off? The case in equity, as it now stands, is precisely that which would have arisen at law, upon the state of things supposed. For, Hodgson, in his answer to this bill, admits this set-off, and solicits the Court to enforce the admission of it by Leeds, who in the right of Straas, is thus endeavouring to deprive him of his legal right to indemnity. The case in no part contests the reality of this state of facts, but the defendant, Leeds, in every part of it, rests his defence upon the ground, that Straas has succeeded in defeating the claims of Hodgson, and deprived the Company of the benefit incident to the assertion of those claims; first, by tying the hands of the Company in a Court of Chancery, in a suit in which he finally failed, and then by a transfer of a |