THE The only claims in this case now remaining for the consideration of the Court, are those of Mr. Penniman ST. LAWand M Gregor. Further proof was directed, at the last RENCE, term, to be made in respect to those claims; and no ad- WEBB, ditional evidence having been produced, beyond that MASTER. which was then disclosed to the Court, the causes have been submitted for a final decision. In respect to the claim of Mr. Penniman, the evidence is very strong that the goods were purchased some time before the war, by his agent in Great Britain, on his sole account. They were not, however, shipped for the United States until the latter part of May, 1813. It is not the intention of the Court to express any opinion as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property purchased before the war, from an enemy country. Admitting such right to exist, it is necessary that it should be exercised with due diligence, and within a reasonable time after the knowledge of hostilities. To admit a citizen to withdraw property from an enemy country, a long time after the war, under the pretence of its having been purchased before the war, would lead to the most injurious consequences, and hold out strong temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent we are all satisfied that the right cannot exist. The present shipment was not made until more than eleven months had elapsed after war was declared; and we are all of opinion that it was then too late for the party to make the shipment, so as to exempt him from the penalty attached to an illegal traffic with the enemy. The consequence is, that the property of Mr. Penniman must be condemned. And this decision is fatal, also, to the claim of Mr. McGregor. Independent, indeed, of this principle, there are many circumstances in the case unfavorable to the latter gentleman. In the first place, it is not pretended that the goods included in his claim were purchased before the war. In the next place, he was the projector of the present voyage, and became, as to one moiety, the charterer or purchaser of the ship. VOL. IX. 16 THE RENCE, Nearly all the cargo consisted of goods belonging (as ST. LAW- it must now be deemed) exclusively to British merchants. He was, therefore, engaged in an illegal trafWEBB, fic of the most noxious nature; a traffic not only proMASTER. hibited by the law of war, but by the municipal regulations of his adopted country. His whole property, therefore, embarked in such an enterprize, must alike be infected with the taint of forfeiture. The judgment of the Circuit Court must, therefore, as to these claims, be affirmed with costs. portant exhi Absent....LIVINGSTON, J. STORY, J. and TODD, J. THIS was an appeal from the decree of the Circuit If the execu- Court for the Virginia district, in a suit in chancery tion of an im- brought by the trustees for the creditors of W. B. Mabit of the Com- gruder & Co. against Drummond's administrators, to plainant's, be not admitted compel the latter to account for funds put into the hands by the Defens of their intestate by W. M. Magruder & Co. dant in his an swer, who calls make full The Defendants, in their answer, say they know no upon the Complainant to such firm or co-partnership as Wm. B. Magruder & Co. proof thereof they cannot admit it, and hope the Complainants will in the Court be put to the proof of it. They have no knowledge of below, this Court will not the deed of trust mentioned in the bill, and hope the presume that Complainants will be required to make ample proof thereof. That W. B. Magruder was largely in debt to proof was made than ap- their intestate, and they believe the funds put into his pears in the hands by Magruder were intended to be applied to that transcript of the record. debt. A copy of a any other deed from a clerk of the The only proof of the deed of trust appearing in the Court without transcript of the record, was a copy certified by one the certificate Gibson, who calls himself clerk of Baltimore county; of the presiding judge that without any certificate from the presiding judge that his attestation was in due form. It purported to be an DRUMassignment of personal estate only, and was not requir- MOND'S ed by the laws of Maryland to be recorded. P. B. KEY, for Appellants, contended, ADMR'S, v. MAGRUDER & CO'S 1. That the Complainants have not shown any title TRUSTEES to call the Defendants to account. the attestation of the clerk is 2. That on reversal this Court must dismiss the bill. in due form, cannot be re dence in a suit They claim as favored creditors at the expense of Ceived as eviDrummond, who is an equally meritorious creditor of in equity. Magruder. They have no equity to be let in to new If this Court proof to make a new case. reverse a decree upon a technical ob the Court If the Court below had dismissed the bill, relief could jection to evideuce, (proba not have been given on a bill of review, unless new evi- bly not made dence, not known at the time of the first trial, should below) it will have been produced. This Court cannot send the cause not dismiss the back for a new trial; or if they can, they will not in fa- bill absolutely, vor of these exclusively favored creditors. R. I. TAYLOR, contra. The cause is now placed on very different ground from that on which it appeared in the Court below. There the question was, whether the Defendants could set off a debt due to their intestate from W. B. Magruder, against this claim in the right of W. B. Magruder & Co. The only question now is whether the Court below erred in giving a decree in favor of the Complainants without evidence of the execution of the original deed of assignment. The Court below could not have de creed in favor of the Complainants, unless they had been satisfied of the execution of the deed, or the proof of its execution had been waved by the other party, This Court, therefore, will presume that the execution of the deed was so proved, or the proof wayed. Exhibits may be proved viva voce at the trial. It was not necessary to reduce the testimony to writing. Harrison Ch. Prac. 403. Laws of U. S. vol. 1, p. 68. vol. 6, p. 100, If incompetent evidence was admitted in the Court be but remand the cause the Court be to low for further proceedings. DRUMMOND'S ADMR'S. น. MAGRU DER & CO'S low without objection, it is no cause for reversal of the decree. P, B. KEY, in reply. The execution of the deed was put in issue by the TRUSTEES answer, and it ought to appear upon the record that it was proved. If the Complainants have failed to put the proof upon the record it is their own fault. The answer puts in issue the right of the Complainants to sue. A copy from the record, even if properly authenticated, would not have been sufficient, because it is not such a deed as the law requires to be recorded. February 25th. Absent....TonD, J, WASHINGTON, J. delivered the opinion of the Court as follows: The Appellees filed their bill on the equity side of the Circuit Court of Virginia for the purpose of recovering a sum of money due from William Drummond to William B. Magruder & Co. To entitle themselves to sustain this suit, they allege in their bill that they are creditors and trustees of William B. Magruder & Co. by virtue of a deed of assignment annexed to the bill as part thereof. This exhibit purports to be an assignment to the Complainants of all the partnership effects, debts and credits of William B. Magruder & Co. in trust for the payment of certain favored creditors of that company, amongst whom are the Complainants. The Appellants filed their answer denying any know. ledge of such a co-partnership as William B. Magruder & Co. and call upon the Complainants to prove the same. They also deny any knowledge of the deed of trust mentioned in and annexed to the bill, and call upon the Complainants to make full proof of it. To this answer there was a general replication; and the cause being heard upon these proceedings, the exhibits and examination of witnesses and the report of the master commissioner, a decree was rendered for the Complainants for the sum reported to be due from the Defendant to William B. Magruder & Co. from which decree the Defendants appealed to this Court, DRUM MOND'S ADMR's. v. The exhibit mentioned in and annexed to the bill, alleged to be an indenture of assignment from William B. Magruder & Co. to the Complainants, appears to be a copy of a sealed instrument certified to be a true copy from the records of Baltimore county Court, under the MAGRUhand of William Gibson, who styles himself clerk of DER & Co's that Court. The record contains no other evidence of TRUSTEES the authenticity of this instrument; and the question I is, whether the Circuit Court erred in decreeing upon this evidence in favor of the Appellees. The right of the Appellees to bring this suit is, by their own showing, merely derivative; and, consequently, it was incumbent on them to prove by legal evidence that the deed of assignment from William B. Magruder & Co. under which they claimed this right to sue a debtor of that house, was duly executed. The answer put this matter directly in issue by denying any knowledge of the deed exhibited with the bill, and requiring full proof to be made of it. This Court is not at liberty to presume that any other proof of this deed was given in the Court below than what appears on the record. That proof consists in the certificate of a person who styles himself clerk of Baltimore county Court, that the paper to which his certificate is annexed, is a copy of a deed taken from the records of the Court of that county; but there is no such certificate as the act of congress requires to satisfy the Court that the attestation affixed to this copy, is in due form. It follows that the instrument so certified cannot be noticed as a copy of a deed from William B. Magruder & Co.; and as it is the foundation of the Complainants' right, the Court erred in decreeing in favor of the Complainants upon such defective evidence. But as this Court cannot fail to perceive that the objection to the proof of this instrument is merely technical, and was probably not made at all in the Circuit Court, it would seem improper to dismiss the bill absolutely. The Court is unanimous in reversing the decree; and a majority are of opinion that the cause ought to be remitted to the Circuit Court of Virginia for further proceedings to be had therein. Decree reversed and remanded for further proceedings. |