IN ERROR to the Supreme Court of the State self, that the parties concerned intended to create

The language of the statute is: The party | 347; Waters v. Riley, 2 Harr. & G. 311; Dorapplying therefor shall execute a bond with one sey v. Dorsey, 2 Har. & J. 480, n.; Bradley v. or more sufficient sureties. When the law re- Burwell, 3 Den. 65; Mr. Cooper's Note to Jusquires a bond to be given, and does not employ tinian's Institutes, p. 462, and cases there cited. words of severalty, the fair intendment, if not Pre-existing debts of every kind, although the necessary one, is that a joint obligation secured by a joint obligation, are regarded in in form is intended, but it does not follow in equity as several; and, consequently, when, by such case that the law intends or contemplates the death of one of the debtors, the remedy that the accident of the death of the sureties against his estate is extinguished at law, shall deprive the obligees of security which the equity will relieve the creditor. But whenever, bond was intended to afford. as in the case of a surety in the joint obligation, there is no such pre-existing liability, the creditor cannot have relief in equity against the estate of the surety who has predeceased his principal and co-obligor, without averring and proving an actual mistake.

The intention of the law was that the property of the principal and of the surety should stand charged with the liability assumed in favor of the plaintiffs, and so the law should be

construed.

Messrs. T. J. Glover, F. H. Dykers, Charles O'Conor, and Francis Kernan, for appel-derson, 1 Myl. & K. 582; Rawstone v. Parr, 3 lees:

The bond not being several, but being joint only, the plaintiffs cannot recover thereon against La Farge's executor.

The right of action at law against La Farge's estate was extinguished by his death in 1858, in the lifetime of his co-obligor.

1. This has long been settled law. Towers v. Moore, 2 Vern. 99, 1 Eq. Cas. Ab. 93, K. Pl. 1, 1739, per Ld. Hardwick; Simpson v. Vaughan, 2 Atk. 32.

2. The plaintiff himself alleges this rule of law, and bases this bill in equity upon it. Otherwise his remedy would be at law; and the bill should be dismissed on that ground for want of jurisdiction.

Thompson v. Railroad Co. 6 Wall. 134, 137, 18 L. ed. 765, 767; United States v. Price, 9 How. 93, per curiam.

When a security or assurance, such as a joint bond or promissory note, is given by way of insuring to a party his just dues upon some dealing had between him and the obligors or promisors, and some subsequent event, such as death, extinguishes or impedes the right of action at law, equity, under the head of relief against accident, will supply a remedy. In so doing, equity acts upon the ground that payment of the money due upon the dealing had is a moral duty and is binding in conscience. The instrument of assurance is regarded as a mere incident, and as not being the substance of the transaction.

Story, Eq. Jur. § 164; Wilkinson v. HenRuss. 539; Jones v. Beech, 2 De Gex, McN. & G. 886; Other v. Iveson, 3 Drew. 177.

Mr. Justice Davis delivered the opinion of the court:

It is very clear that the estate of La Farge is discharged at law from the payment of the obligation in controversy, on the familiar principle that if one of two joint obligors die the debt is extinguished against his representative, and the surviving obligor is alone chargeable. It is equally clear that in this class of cases, where the remedy at law is gone, as a general rule a court of equity will not afford relief, for it is not a principle of equity that every joint covenant shall be treated as if it were joint and several. The court will not vary the legal effect of the instrument by making it several as well as joint, unless it can see, either by independent testimony or from the nature of the transaction itself, *that the par- [*144 ties concerned intended to create a separate as well as joint liability. If, through fraud, ignorance, or mistake, the joint obligation does not express the meaning of the parties, it will be reformed so as to conform to it. This has been done where there is a previous equity which gives the obligee the right to a several indemnity from each of the obligors, as in the case of money loaned to both of them. There a court of equity will enforce the obligation against the representatives of the deceased obligor, although the bond be joint and not several, on the ground that the lending to both creates a moral obligation in both to pay, and that the reasonable presumption is the parties intended their contract to be joint and several, but through fraud, ignorance, mistake, or want In the language of Sir William Grant, in of skill failed to accomplish their object. This Sumner v. Powell, 2 Meriv. 36: "When the ob-presumption is never indulged in the case of a ligation exists only by virtue of the covenant, mere surety, whose duty is measured alone by its extent can be measured only by the words the legal force of the bond, and who is under in which it is conceived." This qualification no moral obligation whatever to pay the obligee, or distinction is firmly established. independent of his covenant, and consequently See cases, supra, Simpson v. Field, 2 Cas. in there is nothing on which to found an equity Ch. 22; Sumner v. Powell, 2 Meriv. 29, Story, for the interposition of a court of chancery. Eq. Jur. §§ 162, 164; Weaver v. Shryock, 6 If the surety should die before his principal, Serg. & R. 262; U. S. v. Price, 9 How. 83, 92; his representatives cannot be sued at law; nor Hunt v. Rousmanier, per Marshall, Ch. J. 8 will they be charged in equity. These general Wheat. 212; Hunt v. Rousmaniere, 1 Pet. 16; doctrines on this subject were presented at Pecker v. Julius, 2 Bro. (Pa.) 33, 34; Harri-large in this court in the case of The United son v. Field, 2 Wash. (Va.) 136; Kennedy v. Carpenter, 2 Whart. 361; Other v. Iveson, 3 Drew. 177; Jones v. Beech, 2 De Gex, McN. &G. 886; Wilmer v. Currey, 2 De Gex & S.

Richardson v. Horton, 6 Beav. 185, 186; Carpenter v. Prevoost, 2 Sandf. 537, and cases cited; Hunt v. Rousmanier, 8 Wheat. 212, per Marshall, Ch. J.; Sumner v. Powell, 2 Meriv. 35, 36.

States v. Price, 9 How. 90, and they are sustained by the text writers and books of reports in this country and England. Story, Eq. J., secs. 162-164; Simpson v. Field, 2 Ch. Cas. 22;

|

Sumner v. Powell, 2 Mer. 30, 1 Turn. & R. 423; equity is not as favorable as if he were surety, Weaver v. Shryock, 6 Serg. & R. 262; Hunt v. without advantage to himself, in the borrowing Rousmanier, 8 Wheat. 212, 213, 1 Pet. 16; of money. In neither case is there any obligaPecker v. Julius, 2 Browne (Pa.) 33, 34; Har- tion to pay independent of the covenant. In rison v. Field, 2 Wash. 136; Kennedy v. Car the one there is a liability for a debt; in the penter, 2 Whart. 361; Other v. Iveson, 3 Drew. other, for a result in an action at law. Both are 177; Jones v. Beach, 2 De Gex, McN. & G. 886; cases of contract, for, indeed, suretyship can exWilmer v. Currey, 2 De Gex & Sm. 347; Waters ist in no other way; and we know of no princiv. Riley, 2 Har. & G. 311; Dorsey v. Dorsey, 2 ple of equity by which a contract of indemnity Har. & J. 480, note; Bradley v. Burwell, 3 Den. is to be construed so as to charge an estate, and 65; Mr. Cooper's Note to Justinian's Institutes, an engagement to pay money to receive a conp. 462, and cases there cited, Richardson v. Hor- trary construction. The equities in both are ton, 6 Beav. 185; Wilkinson v. Henderson, 1 clearly equal, and as the estate of La Farge is Myl. & K. 582; Rawstone v. Parr, 3 Rus. 539. not liable at law, it will not be held liable in The authority of the decisions on this sub-equity. 145*] ject we do not understand the appel- The demurrer to the bill was, therefore, proplant as questioning in a proper case; but heerly sustained, and the decree is accordingly afinsists they are not applicable here.

His position is, that a statutory obligation like the bond in question is different in principle, and should be interpreted differently from a contract made by private parties between themselves, as the obligees in such a bond cannot direct the form it shall take, nor elect whether to accept or refuse it. The bond, which is the foundation of this suit, was given in 1846,

firmed.

CHARLES K. MARSHALL, Appt.,
INCIL

บ.

THE MAYOR AND COUNCIL OF THE CITY
OF VICKSBURG.

(See S. C. 15 Wall. 146-151.)

Forfeiture not enforceable in equity—demurrer —suspension of rights by war—reversion of wharf-extension of rights.

1. Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty, nor anything in the nature of either.

2. It is an efror to sustain a demurrer in part. Where there is a single demurrer, it must be wholly sustained or overruled.

3. Such error may be waived by both parties; by the complainant, by amendment to his bill, and by the defendant by answering.

4. Where, by an agreement with a city, one had the right to wharfage for ten years, and if such right was suspended for any period by the intervention of third parties, the time of such suspension was to be added to the term, and at the expir right to the city, he has no claim against it for a ation of the term he voluntarily surrendered his diminution of his wharf charges by reason of the

war.

5. Where the agreement provided that, in case the right to collect wharfage or rents be interrupted or defeated permanently the property was to revert to the grantor, a reduction of wharf charges by the city, procured by him, or a city wharfage charge will not work such forfeiture.

6. He is not entitled to the income which he would have received during the extension of his term of ten years, if it had been extended at its close for the length of time the quarantines subsisted, where the quarantines were established with his consent. [No. 11.]

under the order of the court of chancery of New
York, to stay the proceedings in an action at
law then pending in the superior court of the
city, and it is argued, as the statute does not
require bonds of this character to be "joint and
several," in legal intendment they must be joint
in form, and all the obligors, therefore, should
be regarded as principals. It is undoubtedly
true, as words of severalty are not employed,
that a joint bond is a compliance with the law,
but it by no means follows that a joint and sev-
eral obligation is not an equal compliance with
its terms. It is certainly not forbidden, and
as the statute is silent on the subject the fair
intendment is that either was authorized, and
that the court had the right to direct which
should be given. If this be so, then it cannot
properly be said that the party enjoined had no
voice in the nature or sufficiency of the security
to be taken, for the discretion of the chancellor
was, necessarily, to be exercised in relation to
both these matters, if his attention was direct-
ed to them, after both sides were heard. It is
quite apparent, if this discretion had been in-
voked, that the instrument of security might
have been different; and equally apparent that
La Farge, in case this had been done, might have
been unwilling to assume the additional risks
which a separate liability imposed on him. We
must suppose, in the absence of any evidence on
the subject, that he knew the legal differences
between the different kinds of obligations, and
became bound in the way he did because a joint
liability was more advantageous to him. If this
was his intention, it would be manifestly un-
just for a court of equity, after the legal status
was fixed by his death, to change the nature of
146*] the obligation which *he executed in or-
der to charge his estate. In the cases in which
equity has treated the obligation as joint and
several, although in form joint, the surety par-
ticipated in the consideration. In this case La-
Farge had no pecuniary interest in the litiga-
tion which was enjoined, and derived no per-
sonal benefit from the instrument of writing
which he signed and, therefore, no good reason
can be furnished why his standing in a court of of the court:

Argued Dec. 5, 1872. Decided Jan. 27, 1873.
PPEAL from the Circuit Court of the
United States for the Southern District of
Mississippi.

A

The bill in this case was filed in the court

below by the appellant, for the forfeiture of certain property, and for compensation for cerfavor of the complainant for a part only of tain damages. Judgment having been given in the relief demanded, he took an appeal to this

court.

The case is fully stated in the opinion of the

court.

Messrs. P. Phillips, R. M. Corwine and W. Yerger, for appellant.

Messrs. J. M. Carlisle, J. D. McPherson, H. F. Simrall and W. P. Harris, for appellee. Mr. Justice Swayne delivered the opinion

This is an appeal in equity from the decree | which it took of the prayer for a decree of forof the circuit court of the United States for the southern district of Mississippi.

would be beneficial to him. See the testimony of Donovan, Rec. p. 150; and of Arthur, p. 139. Volenti non fit injuria.

It is alleged that under the ordinance of June 7, 1852, the city made a wharfage charge of $1 each upon all water crafts other than steamers, touching at the landing. Upon looking into the ordinance we find it too clear to admit of doubt or require discussion that this charge was a tax, such as the city had reserved the right to impose, and not a wharfage charge falling within the category of those which belonged to the complainant. At the same time that this tax was exacted, Marshall was collecting an additional $2 from each of the vessels, upon which it was imposed. With this the city in nowise interfered, and there is no complaint on that subject.

Lastly, it is claimed that the complainant is 151*] entitled to the *income which he would have received during the extension of his term of ten years, if it had been extended at its close for the length of time the quarantines subsist ed. The quarantines affected only boats coming up the river, and only such of those as had cases of fever on board. The quarantines were established with the consent of the complainant. He admits this, but says, that although he then made no such claim, he expected his term to be extended accordingly. He knew all about the quarantines when the extension which he asked for was conceded to him, and when he yielded up the possession, saying he was done with the landing, and claimed only the proceeds of the tax of $1, which we have already considered. His right to collect wharfages was neither "interrupted or defeated permanently," nor, indeed, gainsaid or questioned by the city.

if the party objecting attended; and if he does not then object, he will be presumed to have waived objection.

3. He waives every formal objection when he attends the examination of a witness, cross-examines without protest, and remains silent until the witness has died.

4. Reputation to establish a particular fact not
of a public nature is not generally admissible, al-
though where the existence of the fact has been
Proved aliunde, reputation is sometimes received to
explain it.
5. A tax deed for lands, which is void for want
in evidence.

of compliance with the statute, is not admissible
6. Where no requests were made for specific in-
structions to a jury, error cannot be assigned for
failure to give instructions that were not asked.
[No. 7.]

Submitted Dec. 5, 1872. Decided Feb. 3, 1873.
IN ERROR to the District Court of the Unit

ed States for the District of West Virginia. Suit in ejectment was brought in the court below by the defendants in error. Judgment having been given in their favor, the defendants in that court sued out this writ of error.

The case is fully stated by the court. Messrs. C. Boggess and John S. Hoffman, for plaintiff in error:

The deposition of William Underwood, referred to in the first bill of exceptions, should not have been read to the jury, because it was not taken and certified in conformity with the provisions of the statute.

See Act Cong. Sept. 24, 1789, § 30.

1. In this, that it was not taken and certified by either of the officers therein designated. It was taken before a "justice of a township," one of the subdivisions of a county of the state (see Const. W. Va. art. VII. §§ 1-2, 8-11, and Sess. acts 1863, ch. 122, §§ 12, 16-18, 23, and The claim is neither within the letter, mean- acts of same session, ch. 132, §§ 1-4 et seq. ing, nor equity of the contract, and must be from which it will appear that, except as a denied. It appears that Marshall made two mere conservator of the peace, his judicial powloans from the city to remove incumbrances-ers are limited to the township in which he is one of $1,000. The amount of the other is not elected, and he was, therefore, not a judge of shown. Neither of these loans has been repaid. a county court, within the meaning of the statThere is no report of a master in the record. ute. The decree is very brief. The record furnishes no means of ascertaining the ground upon which the court proceeded, in coming to the conclusion that the complainant was entitled to the sum decreed in his favor.

After a careful examination of the case we have found no error against the appellant. The decree of the Circuit Court is, therefore, affirmed.

CHARLES SHUTTE, Piff. in Err.,

v.

URIAH THOMPSON et al.

(See S. C. 15 Wall. 151-165.)

Waiver of objections to deposition-objections,
when made-reputation, when evidence-tax
deed, when not evidence
jury.

instructions to

It is equally clear that he was not judge of a court of C. P.

In neither the Constitution of the state, nor the statutes, is there any court known by that name. If there be such a one, it must then be so by reason of its constitution or jurisdiction, or both, and these features of it such as to make it a court of that kind, as distinguished from other courts.

The conditions upon which a deposition, in a suit at law, was authorized to be taken, does not appear to have existed, namely: that the witness lived at a greater distance than one hundred miles from the place of trial; or was bound on a voyage to sea; or was about to go out of the United States; or was ancient and very infirm.

Some one of these conditions or reasons should appear on the face of the deposition, and not be left to parol proof. For the act of 1. Where a deposition was not taken in conform-Congress directs that the deposition shall, toIty with all the regulations of the act of Congress, a party may waive such objections; and if he does,

he cannot afterwards avail himself of them.
2. Objections to the competency of a witness
must be made at the time of taking his deposition,

NOTE.-Depositions in U. S. courts, defects and irregularities in, how taken advantage of, and how waived-see note to Winans v. N. Y. & Erie R. Co. 16 L. ed. U. S. 68.

gether with the certificate of the reasons, as aforesaid, of their being taken, be by him, the magistrate, sealed up and returned.

Harris v. Wall, 7 How. 705; Bell v. Morrison, 1 Pet. 355.

It is further required by the act of Congress, that "Every person deposing, as aforesaid,