old and stale, with regard to which the complainant has observed a long silence, and where the correctness of the set-off is a matter of grave doubt.

THIS was an appeal from the Circuit Court THIS was an appeal from the Circuit Court

ambia, in and for the County of Alexandria, sitting as a court of equity.

The case was this:

In the years 1824 and 1828 Jane Dade exeted two deeds of trust to one William HerPert, for the purpose of securing a debt which he owed to Thomas Irwin, the deceased.

la 1830, Thomas Irwin, Junior, the executor of Thomas Irwin (who had died in the mean me), filed a bill against Jane Dade for the sale the property. Herbert, the trustee, was aleed to be a lunatic, and the bill therefore Brayed that a commissioner might be appointel to make the sale.

Jane Dade in her answer admitted the jus the of the claim as stated in the bill. A decree Tas entered in conformity with the bill, and William L. Hodgson appointed commissioner carry the same into effect.

On the 21st of November, 1834, Jane Dade *ad another bill on the equity side of the urt, stating that the sale was to take place za few days, and praying that it might be spended. She alleged that she was entitled As credit under the following circumstances: That in 1718 she had loaned to one James Ir 384*] win $680; that in 1821 *he executed promissory note to her for $826.63, which as the amount of the above sum with interthat, to secure the payment of the note, he signed a debt due to him from Henderson & mpany, which debt was guarantied by Thomas Irwin, who had become liable for the e: and that the amount of this debt, with rest, should be deducted from the sum for which Thomas Irwin's executor was about to her property. The bill further alleged that Thomas Irwin, the deceased, had become pernally liable from having sold some cordage to Henderson & Company, contrary to his inructions. The assignment of the debt from James Irwin to Jane Dade (through her agent, John Adam), and the admission of a personal lity by Thomas Irwin, were alleged to be the following terms:

I do hereby assign to John Adam, the debt Ce me by Alexander Henderson for cordage dhim by Thomas Irwin, as my agent, for ich debt said Irwin is himself liable, having ived said Henderson's note without my sent. This assignment is made to secure to June Dade the payment of six hundred and righty dollars, with interest thereon from the of October, one thousand eight hundred seventeen, money borrowed from her by Maid Adam for my use, for which I have given ham my note, payable in eighteen months, with Interest.

Given under my hand and seal, this 20th day May, one thousand eight hundred and twenty-one. JAMES IRWIN. [Seal.] JOHN ADAM.

(Indorsed) Test: LEWIS COLE. Indorsed. If the within debt cannot be rerered from Alexander Henderson, I am liable At the same: provided full time be allowed for the prosecution of the suit.

THOMAS IRWIN.

The bill further alleges that full time had been allowed for the prosecution of the suit against Henderson, and that there was no prospect of anything being recovered.

Upon filing this bill, an injunction was granted to stay the sale.

In February, 1835, Thomas Irwin, Jun., the executor, filed his answer, denying all knowledge of the note said to have been given by James Irwin, and denying the assignment above recited. The answer admitted that Thomas Irwin had sold some cordage to Henderson & Company, for which he had taken their note; that the *note had been put [*385 in suit, judgment rendered upon it, and execution issued; that Henderson was discharged under the Insolvent Act; that the recovery of the money due on the said note being considered as desperate, his testator had charged the amount to his principals, James Irwin & Company. The answer denied altogether the signature of Thomas Irwin, guarantying the debt; and alleged sundry other matters to show the absence of equity in the claim of the complainant.

In November, 1835, the court refused to dissolve the injunction, and suggested that an issue should be made up to be tried at the bar of the court sitting as a court of law, to try the question of the genuineness of the signature of Thomas Irwin.

This was done, but the jury were not able to agree, and were discharged.

Numerous depositions were then taken and filed, and the case came on to be heard, when the court decreed that the injunction should be dissolved and the bill dismissed with costs.

The complainant, Jane Dade, prayed an appeal to this court.

Messrs. Neale (in a printed argument) and Brent for the appellant.

Mr. Jones for the defendant in error.
Mr. Neale, for the appellant:

This cause, which comes up by appeal from the Circuit Court of Alexandria County, was, upon the final hearing in the court aforesaid, dismissed by a majority of the court, for the following reasons:

1. Because, in the opinion of a majority of the court, the court had not jurisdiction of the case, sitting as a court of chancery.

2. Because, there was no consideration from which the defendant's testator could be made liable, either on account of the assumpsit in writing indorsed on exhibit B, or for blending his principal's goods with his own-taking a note therefor, and suing and obtaining a judg ment thereon in his own name for the two amounts so blended, as the record proves.

.3 Because, the complainant (now appellant) forbore to press this claim sooner, by way of set-off to the claim of the defendant's testator. For these reasons a majority of the court dismissed the bill at the complainant's cost. Dissentient-His Honor the Chief Judge.

These objections, coming as they do from the very fountain of justice, are justly entitled to high respect and grave consideration. But however high and pure the source from whence they proceed, still it is an open question whether or not they are sustained by the *facts [*386 of the case-the principles of equity jurisdiction, and the legal liabilities of an agent to his

principal. According to the regular order of pleading, the first inquiry to be instituted is as to the jurisdiction of the court, and upon that point we cite and rely upon the following authorities and accompanying remarks, to wit: Johns. Digest, 102; 1 Wash. Rep., 145; Barbour & Harrington's Digest, 2, 4, 6, 11, 13, 15, 31, 46; 5 Term Rep., 603; 4 Bing., 459; 1 P. Wms., 325, 326: 2 P. Wms., 128; 4 P. Wms., 611; 5 Peters, 278; 2 Robinson's Practice, 1, 4; Tucker's Commentary, bk. 3, p. 404; 1 Story's Equity, 82, and 442-446, secs. 462, 463, 464. In the case of Grandin and Leroy (2 Paige, 509), it is said, "that after a defendant has answered a bill in chancery, and submitted himself to the jurisdiction of the court without objection, it is too late to insist that complainant has a perfect remedy at law; unless the court is wholly incompetent (as a court of chancery) to grant the relief sought by the bill."

Again it is said, "that whenever the remedy at law is doubtful or difficult, a court of chancery has jurisdiction." (American Insurance Company v. Fisk, 1 Paige, 90; Teague v. Russel, 2 Stew. Rep., 420.)

In the case of Ward v. Arredondo (Hopkins, 203), the court say, "the principle is that the jurisdiction may be upheld whenever the parties, or the subject, or such portion of the subject as is within the jurisdiction, are such that an effectual decree can be made and enforced so as to do justice.'

Mr. Neale then entered at great length upon the consideration of the other two points. His argument is omitted, because the decision of the court was placed upon other grounds.

Mr. Jones, for the defendant in error: This case might appear, at the first blush, somewhat extraordinary, as being a bill of injunction and an original bill to stay the regular execution of a decree in equity, and to obtain relief against it four years after it had been obtained by the now defendant (Irwin) against the complainant (Jane Dade), with her full and unqualified consent for the sale of real property to pay a debt which she had collaterally secured by a conveyance of the same property in trust, for the specific purpose of being sold to raise the money for the payment of such debt, if not paid in a given time. It may not, perhaps, seem less extraordinary that, as an original bill it seeks not to set aside the decree for fraud, and that it is not, in any one sense or shape, or in any 387*] *aspect whatever, a bill of review; that no error either of law or fact on the face of the decree, or in any part of the procedure, nor any new matter discovered since the decree, is at all within the scope or object of the bill; but on the contrary, it is admitted that the debt remains precisely as when the decree was obtained, except a small payment since on account of the interest, and about which there is not, nor ever was, the slightest dispute or difference between the parties; and that the decree stands wholly unexceptionable in itself, and in every part of the procedure, precedent and subsequent. The whole scope and object of the bill is to get the benefit of a pretended set-off, not discovered since the decree, but just as well known to the complainant before the decree, and in fact for many years before the commencement of the suit in which the decree was rendered, as at the present time. The pretended set-off consisted

of a stale demand of more than thirty years standing, wholly unconnected with any trans action involved in that suit. The complainant had no original interest or concern in it. The only interest claimed by her in it was from a pretended assignment of it by a third person made seventeen years after the demand had accrued, more than nine years before the de cree, and more than thirteen years before it was for the very first time brought out and as serted in this bill of injunction. The demand itself consisted in a liability pretended to have been incurred so long ago as 1804, by the now defendant's testator, Thomas Irwin, for mis conduct as agent of one James Irwin (from whom complainant derives her claim as assigne of the cause of action), in having unduly in dulged a debtor to whom he sold goods in trusted with him by James Irwin to sell or commission; and for which misconduct, if satis factorily made out, James Irwin might hav recovered damages in a special action on th case: a cause of action, therefore, purely and strictly legal in its nature. The only miscon duct imputed to the agent is that of havin taken a negotiable note, at 60 days, of the me cantile firm to whom he had sold the goods Complainant pretends that seventeen years afte this transaction, when the assignment was made Thomas Irwin indorsed on the assignment conditional acknowledgment of his liability, i the debt cannot de recovered of the principa debtor, provided a reasonable time be allowe for the prosecution of the suit.

Now, supposing the complete establishmen of this set-off in every point of law and fac setting aside all consideration of the extraord nary length of time it had been kept back i silence and inaction; *and waiving all [*38 objection to equity jurisdiction of a demands exclusively legal; and in fact strictissimi jurs in its nature; the appellee might be content rely solely upon the well known principles an rules of equity law and practice, which estal lish, first, that a final decree enrolled (or wha with us, is equivalent to enrollment in England after the term at which the decree was rendere has passed over), it cannot be set aside, n can any relief whatever be obtained against by any sort of original bill, unless fraud the decree be distinctly and circumstantial charged. Second, that even in the case of bill of review, either demonstrative error matter of law must be shown on the face of th decree, or the fresh discovery of new matt since the decree; the materiality of which, an the positive inability of the complainant to hav come at a previous knowledge of it by usin reasonable and active diligence, must all clearly shown by affidavit. Third, that aft a case for a bill of review has been thus ma out, it cannot be filed without the special lea of the court; one of the ordinary and standin conditions of which leave is, that the decr shall first be performed. So utterly foreign all received notions of equity law or practice a bill of injunction to stay the execution of decree, and so utterly inadmissible is any s of relief by means of one decree in equi against another decree in equity, but for one other of the special causes, and in one or oth of the special modes of procedure aforesaid.

Where there is newly discovered evidence

tion arises that the one is understood by the parties to go in liquidation or set off of the other. In the next place, the remedy for Mrs. Dade, if any such debt as she has alleged exists, is at law against the executor; and there is no suggestion that the estate of the testator is insolvent, and that his assets cannot be reached at law. So that the bill steers aside of the assertion of any equity upon the foundation of which it can rest for its support.

In the next place, the nature and character of the claim itself, now for the first time made, long after the decease of both the Irwins, and thirteen years at least after its supposed origin. To put the case in the least unfavorable light, it is a matter of grave doubt whether the indorsement of the testator's name on the assign. ment is genuine or not. That very doubt would be sufficient to justify this court in affirming the decree of the court below. and leaving Mrs. Dade to her remedy at law, if any she have. But connecting this with such a protracted silence for thirteen years, without presenting or making any application for the recognition or allowance of the claim to the testator or his executor, it is impossible not to feel that the merits of the claim at such a distance of time can scarcely be made out in favor of the appellant. It is stale, and clouded with presumptions unfavorable to its original foundation, or present validity. Besides, in cases of this sort, in the examination and weighing of matters of fact, a court of equity performs the like functions as a jury; and we should not incline, as an appellate court, to review the decision to which the court below arrived, unless under circumstances of a peculiar and urgent nature. The decree of the Circuit Court is therefore affirmed, with costs.

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 Columbia, holden in and for the County of Alexandria, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

Cited 19 How., 278; 2 Black, 551; 7 Wall., 618; 15 Wall., 228; 3 Story, 346: 2 Wood. & M., 29, 30; 3

McAr., 3.

The position of the case is sufficiently set forth in that report. It now came up on a final hearing.

Mr. Walker, for the plaintiffs in error, examined the title of the plaintiffs as set forth in the papers in the cause, and contended for its su periority over that of the defendant.

Mr. Webster, for the defendant, referred to the decision in 1 Howard, and said that it was quite evident that there was no error of law ap parent on the face of the record. There is no ruling of evidence, no demurrer, no bill of exceptions, no agreed state of facts, no special ver dict. Nor is it like any of those cases in which the court has acted on undisputed evidence, in cases from Louisiana, as if such undisputed ev idence were equivalent to an agreed state of facts.

The whole case, law and fact, was submitted to the judge, as a referee or arbitrator. The law was disputed, and the facts were disputed: and whether judgment was rendered on the facts or on the law does not appear. The judg ment is general, for the defendant. It is plain that this court cannot revise this judgment, without examining all the evidence, plan, depositions, surveys, &c., just as they would be examined by a jury.

For anything which the record discloses, every point of law may have been decided in the plaintiff's favor.

Mr. Justice MCLEAN delivered the opinion of the court:

This case is brought here by a writ of error to the Circuit Court for the Eastern District of Louisiana.

Court, to recover possession of certain tracts of land specified in the petition, and for damages. &c.

The action was commenced in the Circuit

The defendant set up a title to the premises and pleaded prescription, under the various

laws of Louisiana.

*This cause was before this court at [*393 reversed and sent down for further proceedings January Term, 1833, on a writ of error, and was In the court below, the death of the plaintif was suggested, and a supplemental petition was filed, making his heirs and representatives parties to the suit. The pleadings were amended, and a jury being called and sworn, evidence was heard by them, and certain exceptions taken to its admissibility by the defendant. But afterwards, by consent of parties, the jury, before they rendered their verdict, were dis charged. The case was then submitted to the court, under an agreement between the counsel. that the documents filed in the cause, the plans and written depositions, contain all evidence and exhibits on which this cause was tried by the court; the whole was read, subject to all legal exceptions except as to the form of taking the verbal testimony; and all other ob jection to the testimony, accounts, and plans, are to be argued as though the bills of excep tions were drawn out in form, signed and filed The agreement is made for a statement of the facts in the case."

A large mass of evidence was received from both parties, consisting of concessions and grants under the Spanish government, inter mediate conveyances, documents showing pro

ceedings in regard to the title under the laws of the United States, and parol testimony, involving a great variety of facts, on a consideration of all of which a judgment was rendered by the Circuit Court for the defendant.

From the record it is impossible for this court to say on what grounds of law or fact the Circuit Court gave judgment. No point as to the admissibility or effect of the evidence was raised on the record by the plaintiffs in error in the Circuit Court. It seems to have been sup posed that the above agreement of the counsel, that the evidence in the cause should be considered as a statement of facts, subject to all legal objections, though no objections were stated, was sufficient ground for a writ of error on which a revision of the legal questions in the case might be made in this court.

In this view, the writ of error must be considered as bringing all the facts before this court, as they stood before the Circuit Court. And this court, exercising a revisory jurisdiction, would be required to try the cause on its merits. This is never done on a writ of error, which issues according to the course of the common law. Under the Louisiana system a different practice may prevail. But, we had supposed, that since the decisions of the case of Parsons v. Bedford et al. (3 Peters, 445), there could be no misapprehension in regard to the 394*] *proceedings of this court on a writ of error. In that case the court say, "it was competent for the original defendant to have raised any points of law growing out of the evidence at the trial, by a proper application to the court; and to have brought any error of the court in its instruction or refusal, by a bill of

exceptions, before this court for revision. Nothing of this kind was done or proposed. No bill of exceptions was tendered to the court, and no points of law are brought under review." and the court go on to consider the effect of the Act of 1824, in regard to the Louisiana practice, and hold that that law does not change the exercise of the appellate power of this court. The case referred to had been tried by a jury, but in regard to the revisory power of this court, on a writ of error, there is no material difference between that case and the one under consideration. In both cases the facts were upon the record, and this court were called upon to determine the questions of law arising upon the facts.

In the case of Parsons the court do say, "that if the evidence were before them it would not be competent for the court to reverse the adgment for any error in the verdict of the jury." And they say, the refusal of the court, to direct the evidence to be entered on the record as required under the Louisiana practice, was not matter of error.

Whatever opinion, therefore, may have been entertained in regard to the effect of the Act of 1824, on the practice of the Circuit Court of the United States, in Louisiana, before the above decision; after it, there would seem to be no ground for doubt. The practice of the Circuit Court in Louisiana, since the above case was decided, has conformed to the rule laid down in that case. But in the present cause, there is no statement of agreed facts. If the case be revised on a writ of error, the evidence on both sides must be considered and weighed

by the court, as a jury would consider and weigh it; and after adjusting the balance, the principles of law, not as they were presented in the Circuit Court, but as the may arise on the evidence, must be determined. This is not the province of a court of error, but a court of chancery on an appeal from the decree of an inferior court. On such a review, not only the competency of the evidence must be decided, but also the credibility of the witnesses.

The case under consideration was a proceeding at law, and, as the legal points have not raised by a bill of exceptions, in the Circuit Court, it is not a case for revision in this court.

A judgment of *affirmance is therefore [*395 entered, at the costs of the plaintiff in error.

Mr. Crittenden, contra.

Both parties appealed from the decision of the court below; but Savage did not perfect his appeal. There is a difficulty in making proper parties, if the case is sent back. The law of Alabama says that administration of the estate shall be attached to the office of sheriff, but his official term will soon expire, and we shall have to litigate with temporary administrators.

Mr. Berrien, on the same side, thought there was still a case before the court upon which it could act. It is true that the decree below was rendered on the same day that the adminis trator was removed; but notwithstanding this, it was well rendered. If a party dies, the court will direct a judgment to be entered as on the first day of the term. (2 Peters, 481.)

*There is no difference between a [*396 party dying and one in a representative character being removed. This must have been the view of the court; the validity of the decree must have been recognized when they said that