entered and ejected, expelled, drove out and amoved the plaintiffs therefrom, and ever since hath, and still doth keep out the plaintiffs from the premises, taking the whole profits to himself, which is to the damage of the plaintiffs six hundred dollars, to recover which and the quiet and peaceable possession of the said premises, and just costs, they bring this suit."

Bradley, (of Vermont,) for the plaintiffs, contended, :

1st. That by the common law of Vermont, the words "equally to be divided between them" do not make a tenancy in common, because a tenancy in common is not thereby necessarily implied. Joint heirs in Vermont hold as coparceners.

*2d. That if the plaintiffs are tenants in common, yet they have a right, by the common law, to maintain a joint action for an injury to their lands holden in common. (3 Bac. Abr. 216.)

3d. That even if the plaintiffs are to be considered as tenants in common, and could not by the common law join in an action to recover possession, yet by the statute of Vermont of 2d of March, 1797, (Laws of Vermont, p. 118. s. 88.) they must join in an action for the mesne profits, or rather no other action is given for the mesne profits than an action for the possession itself, in which the plaintiffs shall recover the possession as well as damages.

The words of the act are, "and in every such action," (ejectment,) "if judgment be rendered for the plaintiff, he shall recover as well his damage as the seisin and possession of the premises." As, therefore, the action for the mesne profits cannot be severed from the action of ejectment, and as, upon every principle of law, tenants in common must join in the action for the mesne profits, it follows that they must join in the possessory action also.

The principle has also been admitted by the legislature of Vermont, by the act of 29th of October, 1806, s. 4. which declares, "that tenants in common of any lands, &c. may join in any action which concerns their common interest in such land."

There was no argument on the part of the defendant.

February 23.

The Court decided that the action was well brought, and that the will ought to be received in evidence to support the declaration.

*THE UNITED STATES v. ZEBULON

CANTRIL.

THIS case was certified from the circuit court of the The act of district of Georgia, the opinions of the judges of that congress of 27th of June, court being opposed upon a motion in arrest of judg- 1798, to pu ment, upon a verdict of guilty on the following indict- nish frauds ment, viz.

committed on the bank of the

is in itself re

for

a false, forged,

purporting to

"The jurors," &c. "upon their oath present that Ze- United States, bulon Cantril, late," &c. on the 1st of January, 1806, pugnant, and "with force and arms, at the house of one William Gib- will not supson, in the town of St. Mary's," &c. "a certain false, ment port an indictforged and counterfeit paper, partly written and partly knowingly utprinted, purporting to be a bank bill of the United States tering as true, for ten dollars, signed by Thomas Willing, president, and and counter G. Simpson, cashier, dated at Philadelphia, the second feit paper, day of September, one thousand eight hundred and four, be a bank bill payable on demand to R. Beatty or bearer, with force of the United and arms, did feloniously utter and publish as a true bank by the presi States, signed bill of the United States, with intent to defraud the said dent and caWilliam Gibson, and which said false, forged and coun- shier. terfeit bill, partly written and partly printed, is in the words, figures and letters following, to wit:" (here the bill was inserted:) "he the said Zebulon Cantril,” “at the said time of uttering and publishing the said false, forged, and counterfeit bill, partly written and partly printed, there by him in form aforesaid, well knowing the same so by him uttered and published to be false, forged and counterfeited, against the form of the statute in that case made and provided, and against the peace and dignity of the United States."

The reasons assigned in arrest of judgment were,

1. That the indictment is insufficient and repugnant, inasmuch as it charges the prisoner with having uttered and published as true, a certain false, forged, and counterfeit paper, partly written and partly printed, purporting to be a bank bill of the United States for ten dollars, signed by Thomas Willing, president, and G. Simpson, cashier, &c.

*2. Because the act of congress, passed the 27th of June, 1798, entitled "An act to punish frauds committed on the bank of the United States," (vol. 4. p. 152.) under which the prisoner is indicted, or so much thereof as relates to

* 168

1

United States the charge set forth in the indictment, is inconsistent, re

V.

Cantril.

pugnant, and, therefore, void.

The words of the act of congress, so far as they describe the offence charged, are as follows, viz.

"If any person shall utter or publish, as true, any false, forged, or counterfeited bill or note issued by order of the president, directors and company of the bank of the United States, and signed by the president, and countersigned by the cashier thereof, with intention to defraud the said corporation, or any other body politic or person, knowing the same to be falsely altered, forged or counterfeited, every such person shall be deemed and adjudged guilty of felony, and being thereof convicted, according to the due course of law, shall be sentenced," &c.

The question was submitted without argument.

MARSHALL, Ch. J. delivered the opinion of the court that the judgment ought to be arrested, for the reasons assigned in the record, and directed the opinion to be certified accordingly.

The same order was made in the case of The United States v. Baylis, for a similar offence.(a)

(a) An act of congress was passed at the session 1806-1807, to amend the law in this respect.

* 169

A collector

of the United

*STHRESHLEY & OBANNON v. THE UNITED

STATES.

THIS was an action of debt, brought by the United of the revenue States in the district court of Kentucky district for the States, after penalty of an official bond given by Sthreshley, with removal from Obannon as his surety, dated the 13th of September, office, has no authority to 1796, the condition of which was, "that whereas the collect the du- said Thomas Sthreshley is appointed, under the acts of ing at the congress laying duties upon spirits distilled within the time of his re- United States, and upon stills, a collector of the rewhich had ac venue which shall or may arise, by virtue of the sevecrued while ral acts of congress; to be computed from the first day in office, but this power and duty devolves upon his successor.

ties outstand

moval, and

he

remained

1

Sthreshley

of July, 1796, and to continue until revoked by the supervisor within the counties of Fayette and Clarke, United States. being the first division of the first survey of the district of Ohio.

"Now if the said Thomas Sthreshley, his heirs, executors or administrators, shall well and truly superintend the several distilleries and stills, and collect all other duties by law required of him, as mentioned in his said commission, in his division; shall do and perform all the several duties which by law is or shall be required to be done at or within the same; shall collect the duties arising thereon according to law, and duly account for and pay the same to the supervisor of the said district, or some other officer of the United States duly authorized; then this obligation to be void, or else to remain in full force and virtue."

The defendants pleaded, 1st. General performance; and, 2dly. That the appointment of Sthreshley was revoked on the 1st of July, 1797, and that he faithfully executed and discharged all the duties of his said office according to law, accruing from the said 1st day of July, 1796, until the 1st day of July, 1797, inclusive, and all things relative thereto.

The breach, assigned in the replication, was, that Sthreshley "did not well and truly account for and pay *to the supervisor of the district in his said obligation mentioned, or to any other officer of the United States duly authorized to receive the same, the several duties arising and accruing within his said division during his continuance in office, under the laws of the United States and his said commission, and which, by virtue of the said obligation and commission, the said laws of the United States did require him to account for and pay over; but hath failed therein and is in arrear to the said United States in the sum of two thousand one hundred and seventy-one dollars and twenty-nine cents, and three fourths of a cent," upon which breach an issue was tendered and joined; upon the trial whereof a bill of exceptions was taken by the defendants to the refusal of the court to admit evidence that at the time of the revocation of his commission, there were outstanding and uncollected by him duties to the amount of 2,285 dollars and 83 cents which had accrued during his continuance in office, and which constituted part of

* 170

V.

Sthreshley the account charged against him, and for the balance United States. Whereof the present suit was brought; and that the defendant had delivered over to his successor in office true accounts of the said outstanding duties, for collection.

*171

This evidence was rejected under the opinion that the defendant, although his commission was revoked, had authority, and was in law bound, to collect all the outstanding duties which had accrued during his continuance in office.

The verdict and judgment in the court below, being in favour of the United States, the defendants brought their writ of error.

H. Marshall, for the plaintiffs in error, suggested a doubt whether the bond was not void, inasmuch as there was no law of the United States which authorized the supervisor to demand it, or required the officer to give

it.

JOHNSON, J. How can that question arise upon the plea of performance?

H. Marshall. If the bond is totally void, it will not support a judgment under any form of pleading. He did not, however, mean to press the objection.

*The principal question, viz. whether the power of the officer to collect the outstanding duties which had accrued while he was in office, ceased with his removal, was submitted without argument.

Rodney (Attorney-General) referred the court to the laws of the United States, vol. 1. p. 304. s. 5, 6. 16.; vol. 2. p. 82.; vol. 3. p. 80. 421.; and vol. 4. p. 191.

February 28,

MARSHALL, Ch. J. delivered the unanimous opinion of the court, that the power of the officer to collect the outstanding duties ceased upon his removal from office, and devolved upon his successor. A contrary construction would be extremely injurious to the revenues of