Green v. Watkins. 7 W.

the State, of its vacant lands, conferred, by construction of law, a seisin in deed to the grantee, this court expressed an unhesitating opinion in the affirmative on both points. It follows, therefore, by necessary inference from this doctrine, that the tenant may disprove the demandant's seisin in deed by any evidence competent for this purpose; and if he succeeds in establishing the fact, the demandant must fail in his suit. That the proof of a prior patent of the same lands to another person would be sufficient for this purpose, in a case where the demandant relied exclusively upon a constructive seisin in deed, in virtue of the grant of his patent, has been already asserted. The eighth question propounded to the court, in Green v. Liter, is that, however, upon which the difficulty at the bar has arisen. It is in these words: "Can the defendant defend himself by an older and better existing title than the demandants in a third person?" Now, it is material to consider, that this question does not purport to inquire whether the tenant may disprove the defendant's seisin in a writ of right; nor does it purport to inquire whether the tenant may not show that the demandant has no title, or a title defective in point of legal operation. It supposes that the [ * 33 ] demandant has a * title per se, sufficient for a recovery, and then asks if a better title may be shown in a third person to defeat such recovery. The answer of the court is in the following words: "We are of opinion that a better subsisting adverse title in a third person is no defence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit." It is most manifest, that in this answer the court proceed upon the supposition that the demandant has, primâ facie, a good title, upon which he may maintain his suit; and that he has established a seisin sufficient in point of law, to entitle him to a recovery. And the point then is, whether a superior adverse title and seisin in a stranger can be given in evidence to dispute such recovery. The very reason assigned against the admission of such evidence shows the understanding of the court to be precisely what we now assert It cannot be admitted, because a writ of right does not bring into controversy the right of the demandant as against all the world, but the mere right of the parties to the suit. But it does bring into controversy the mere right between these parties; and if so, it, by consequence, authorizes either party to establish, by evidence, that the other has no right whatsoever in the demanded premises; or that his mere right is inferior to that set up against him.

If, in the case at bar, the demandant had established an actual seisin by occupation of the land, and taking the esplees, the case would then have presented precisely the point which was under

Page's Administrators v. Bank of Alexandria. 7 W.

stood to be presented in Green v. Liter; and from the

opinion given in that case, on that point, there is not the [ 34 ] slightest inclination in this court to depart. We think that

the decision in the present case may well be made upon the principles which have been already expounded, without in any degree breaking in upon the doctrines of that case.

If we are right in this view of the subject, it is unnecessary to enter into a minute examination of the points made in the court below, since the evidence which was objected to, was, under the circumstances of the case, clearly admissible, for the purpose of disproving the seisin of the demandant.

As to the instructions prayed for by the demandant, in the close of the evidence, and refused by the court, and as to the instructions actually given by the court, to the jury, it does seem necessary to pass them in minute review. Several of them turn altogether upon the deduction of title by the tenant, from the original patentee, whose patents they set up in defence. And as to the others, they may be disposed of by the single remark, that no error has been shown by them, in the argument here, and no error is perceived by the court. Judgment affirmed.

3 P. 99.

PAGE'S ADMINISTRATORS V. THE BANK OF ALEXANDRIA.

7 W. 35.

Though an indorser of a negotiable note may ordinarily be declared against in an action for money had and received, yet if the plaintiff's evidence shows that he was a mere accommodation indorser, this action will not lie; he can be charged only on a special count upon the note.

ERROR to the circuit court of the District of Columbia, for the county of Alexandria. This was an action of assumpsit, brought by the defendants in error, the Bank of Alexandria, against the plaintiffs in error, the administrators of William Byrd Page, deceased. The declaration contained two counts. The first was on a promissory note, which was set forth, as made by William Hodgson, and payable on demand to the intestate, Page, who indorsed it to the Bank of Alexandria, where it was discounted, and the money paid to Hodgson. In support of this count, a note was given in evidence, drawn by Hodgson, in favor of, and indorsed by Page, payable fiftyfour days after date.

The other counts were for money lent and advanced by the plaintiffs below to the intestate, Page, and for money had and received by him for their use. Evidence was also given to show the

Page's Administrators v. Bank of Alexandria. 7 W.

[36] bank had * used due diligence in demanding payment of the maker, and in giving notice of non-payment to the indorser; and that Page, in his lifetime, frequently promised the bank payment of the note, after it became due. Judgment was given for the plaintiffs below, on a demurrer to the evidence, and the cause was brought to this court by writ of error.

This cause was argued by Swann and Lee, for the plaintiffs in error, and by Taylor, for the defendants in error.

LIVINGSTON, J., delivered the opinion of the court, and after stating the case, proceeded as follows:

Whether due diligence were used by the holder of the note, is immaterial now to inquire, as this court is of the opinion that a note payable any number of days after date, could not be applied to a count describing it as one payable on demand.

The only remaining question is, whether this note was sufficient proof of the count for money lent and advanced, and for money had and received. There are certainly cases in which a promissory

note or an indorsment of such note, may be offered in [* 37 ] * evidence, against the maker or indorser, under a count of this nature, and if unconnected with other circumstances, may be sufficient proof, in itself, to charge the defendant. This proceeds on the ground that such note warrants a fair presumption or inference that the maker or indorser has received the contents of such note. But the court is not satisfied that, in this case, the mere production of this note was sufficient proof of Page's having bor rowed money of the bank, or of his having received moneys for their use. Although a note or an indorsement be primâ facie evidence of a receipt of money from the holders, by the maker or indorser, yet, when all the other testimony in the cause produced by the plaintiffs themselves, shows unequivocally that the money for which the note was made was paid, not to the indorser, but to the maker himself, and for his sole use, the presumption arising from the mere act of indorsement is destroyed, and the party in such case ought not to be permitted to abandon his count on the written contract of the party, and apply it to the general money counts. It is admitted or proved that this was a note made and indorsed for the accommodation of Hodgson, and that this fact was known to the directors of the bank, who received and discounted it as such, and for his sole use, and that he, and not Page, received the avails thereof. What pretence, then, is there, that this money was lent to Page, or that he received it for the our of the bank?

Ex parte Kearney. 7 W.

There was also proof in the cause that "Page, in his lifetime, frequently promised the bank payment of the said note,

after it became due." This promise must be regarded as [38 ] applying exclusively to the note which was offered in evidence, and was payable in fifty-four days after date; and if that note had been declared on, its influence on the cause would deserve serious consideration; but it cannot be used in support of the other count, for the testimony, in terms, confines this promise to payment of the note, and says not a word of his undertaking to repay the money which the bank had loaned to him, or which he had received for their use.

The opinion of the court, then, is, that the bank can only recover from the administrators of Page, if at all, on his indorsement; but that, having set forth the note incorrectly, and there not being sufficient evidence to support the second count, the present action cannot be sustained. The judgment of the circuit court is therefore reversed; and judgment is to be entered for the defendants below.

6 H. 31.

Ex parte KEARNEY.

7 W. 38.

the custody of the

This court has not authority to issue a writ of habeas corpus to bring up the body of a person committed to jail for a contempt by the circuit court for the District of Columbia. Jones moved for a habeas corpus to bring up the body [* 39 ] of John T. Kearney, now in jail, in marshal, under a commitment of the circuit court for the District of Columbia, for an alleged contempt. The petition stated that on the trial of an indictment in that court, the petitioner was examined as a witness, and refused to answer a certain question which was put to him, because he conceived it tended materially to implicate him, and to criminate him as a particeps criminis. The objection was overruled by the court, and he having persisted in refusing to answer the question, was committed to jail for the supposed contempt; and for no other cause.

Jones, for the petitioner.

Swann, (District-Attorney,) contrà.

STORY, J., delivered the opinion of the court, and after [ 41 ] stating the case, proceeded as follows:

Upon the argument of this motion, two questions have been made:

Ex parte Kearney. 7 W.

first, whether this court has authority to issue a habeas corpus, where a person is in jail, under the warrant or order of any other court of the United States; secondly, if it have, whether, upon the facts stated, a fit case is made out to justify the exercise of such an authority.

[ * 42 ]

As to the first question, it is unnecessary to say more than that the point has already passed in rem judicatam in this court. In the case of Bollman and Swartwout, 4 C. 75, it was expressly decided, upon full argument, that this court possessed such an authority, and the question has ever since been considered at rest.

The second point is of much more importance. It is to be considered that this court has no appellate jurisdiction confided to it in criminal cases, by the laws of the United States. It cannot entertain a writ of error, to revise the judgment of the circuit court, in any case where a party has been convicted of a public offence. And undoubtedly the denial of this authority proceeded upon great principles of public policy and convenience. If every party had a right to bring before this court every case, in which judgment had passed against him, for a crime or misdemeanor or felony, the course of justice might be materially delayed and obstructed, and, in some cases, totally frustrated. If, then, this court cannot directly revise a judgment of the circuit court in a criminal case, what reason is there to suppose, that it was intended to vest it with the authority to do it indirectly? It is also to be observed that there is no question here, but that this commitment was made by a court of competent jurisdiction, and in the exercise of an unquestionable authority. The only objection is, not that the court acted beyond its jurisdiction, but that it erred in its judgment of the law applicable to the case. If, then, [ 43 ] we are to give any relief in this case, it is by a revision of the opinion of the court, given in the course of a criminal trial, and thus asserting a right to control its proceedings, and take from them the conclusive effect which the law intended to give them. If this were an application for an habeas corpus, after judgment on an indictment for an offence within the jurisdiction of the circuit court, it could hardly be maintained that this court could revise such a judgment, or the proceedings which led to it, or set it aside, and discharge the prisoner. There is, in principle, no distinction between that case and the present; for when a court commits a party for a contempt, their adjudication is a conviction, and their commitment, in consequence, is execution; and so the law was settled upon full deliberation, in the case of Brass Crosby, Lord Mayor of London, 3 Wilson, 188.