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be used in connection with other parts of a ma the defendants, and allowed by the court. A part chine which has been publicly known and used
of the defendants, who had originally claimed ap
peal, before any further proceedings abandoned it ; a long time. There must, therefore, be some and the residue of thcm, excepting Todd, bare mode of fastening and connecting it with the since the appeal was üled,' abondoned it, and Todd other machinery; and the effect produced by the only has entered his appearance to the Supreme
The record stood in the names of all the rib necessarily depends in a great degree upon appellants. A motion was made to dismiss the the mode in which it is arranged and connected appeal, for Irregularlty and want of Jurisdiction, with the saw, and the other parts of the ma
on the ground that it cannot be maintained on be
half of Todd alone. The court refused to dismiss chine. He specifies the mode and claims it as the appeal. part of his invention. According to his state. The proper rule in cases of this sort, where there ment his improvement consisted in the form of Pendants affected by a joint decree (although it
are various defendants, seems to be that all the de the rib which increased the depth between the may be otherwise, where the defendants have sepupper and lower surface, as the part where the arate and distinct interests, and the decree is sev. cotton is drawn through the grate, in the slop- eraland does not jointly affect all), should be ing up so as to meet the upper or outer surface decline, upon notice and process (in the nature of a above the saws, and in the smooth and unin- summons, and severance in a writ of error) to be terrupted passage produced by the manner in Issued in a court below, to become parties to the which it was connected with the frame.
appeal, then that the other defendants should be These
at liberty to prosecute the appeal for themselves three things he represents as constituting his and upon thelr
own account; and the appeal as to improvement, and they are all combined to. the others be pronounced to be deserted, and the gether in his specification and claim, making in and executed.
decree of the court below as to them be proceeded together one invention to be used in connection with the other and oild machinery.cof the cotthon APPEAL. from the Circuit Court of the Unitpatent shows the manner in which the rib is Mr. Davies, for the appellee, moved to dis. Bloped and arranged with the saw and annexed miss the appeal. He stated that the appeal had to the framework, in order to attain the object been actually entered in the Circuit Court, in of the invention.
the names of the appellants mentioned on the Now, the end to be accomplished is not the record; but that there were other defendants in subject of a patent. The invention consists in the Circuit Court, against whom the decree had the new and useful means of obtaining it. And been rendered, who had not joined in the apif the defendant had by a rib of a substantially peal, not having had any regular notice of such different form, or differently arranged with the appeal. They were Hayes, Gouch, and West. Baw, or not fastened at all to the frame, made cott. an improvement which more effectually secured Of the above-named appellants, James Todd the object intended to be accomplished by the alone enters his appearance here, by his counsel, plaintiff's patent, it would be difficult to main- Francis 0. J. Smith, Esq., who now brings up tain that it could not be lawfully used, because the record, and proposes to prosecute the ap. it produced the same result with the plaintiff's peal on behalf of Todd in this court, singly, invention.
without any of the rest; "whose names, (*522 The usefulness of the rib depends altogether, however (appearing in the record as appellants), as described in the specification, upon the man- are extended on the docket by the clerk. ner of its connection with the periphery of the The counsel for Todd, by writing filed in the Baw, and with the framework. And if, there. case here, February 16th, disclaims and disfore, as was said by the Circuit Court, the rib avows any and all appearance for either of the made by the defendant was not fastened at all other defendants, named as appellants. to the framework, or in a manner substantially The other defendants who joined in the apdifferent from the plaintiff's or in a manner peal have subsequently abandoned any further known and used before the plaintiff's invention, prosecution of it; and have given notice to the 520*) it was no infringement of his patent. complainant's counsel to that effect, submitting And whether the manner was the same in sub to the decree, and some of them offering to pay stance or not, was a question of fact for the their respective amounts, according to the dejury, and as they found for the defendant, we cree of the Circuit Court; the last notice by must assume that it was substantially different. the Mitchells being dated January 28th, 1842, at
The judgment of the Circuit Court is there. which time the appeal here had not been enfore affirmed.
tered, nor the record filed.
Mr. Smith, for the appellant, James Todd, opposed the motion.
The only party here actually interested in 621") "JAMES TODD, Thomas Warren, the appeal is Mr. Todd. Although he had been
Tristram G. Mitchell, William C. Mitchell, only an agent in the transaction out of which and Woodbury Storer, Administrator of Israel the controversy involved in this suit arose, the Waterhouse, Deceased,
decree of the Circuit Court affected him as principal, and subjected him to the payment
of a considerable sum of money. It was to CHARLES DANIEL, Complainant and ap- controvert this claim that the appeal had been pellee.
prosecuted. If others who had been appellants Abandonment of appeal by some of the appel NOTE.—That no one but parties to the record lants-practice.
can be heard on review, see note to 9 L. ed. U. &
As to parties necessary in equity, see note to Motion to dismiss an appeal. The ap
4 L. ed. U. S. 242; 5 L. ed. U. S. 97. were the original defendants. After the decree of As to who are necessary parties in error, see bote the Circuit Court, an appeal was claimed by all to 8 L. ed. U. 8. 727.
had withdrawn their appeal, or if some of them there is no pretense to say that any practical did not enter an appeal, the party who now inconvenience can occur from Todd's now pros. asko to maintain it should not be injured by ecuting it alone, and since the other defendthe condition of the case.
ants have all had notice and declined to inter
fere, and are content to abide by the original Mr. Justice Story delivered the opinion of decree. the court:
In the case of Coxe and Dick v. The United This is an appeal from the decree of the States, 6 Peters, 172, no doubt was entertained Circuit Court for the District of Maine, in al by this court that a writ of error might be ensuit in equity, in which the appellants were tertained "by the defendants severally, (*524 the original defendants. After the decree was where the judgment operated under the laws made, an appeal was claimed by all the defend- of Louisiana as a several as well as joint judg. ants, and allowed by the court. A part of the ment, although they might have united in the defendants, who originally claimed the appeal, writ of error; and if any one chose not to prog. before any further proceedings, abandoned ecute it, the others might, upon a summons their appeal; and the residue of them, except- and severance, proceed alone. ing Todd, have, since the session of this court, The case of Owings v. Kincannon, 7 Peters, abandoned their appeal, and Todd only has 399, seems to have been misunderstood at the entered his appearance. But the record stands bar. The objection in that case was not that in the names of all the defendants as parties ap: one or more of the defendants might not pursue pellant. Under these circumstances, the counsel an appeal for their own interest, if the others for the appellee has moved the court to dismiss refused to join in it upon due notice, and process the appeal for irregularity and want of juris. for that purpose from the Circuit Court; but diction, upon the ground that it cannot be that it did not appear that all the defendants maintained on behalf of Todd alone.
were not ready and willing to join in the apThere is no doubt that the appeal having peal, and that the appeal was brought by some 323*] been deserted by all "the original de of the appellants without giving the others an fendants except Todd, it must be dismissed opportunity of joining in it, for the protection with costs as to them. But as to Todd very of their own interest, not only against the apdifferent considerations must arise. He seeks pellee, but against the appellants, as their own to reverse the decree in the court below, as er interests might be distinct from, or even adroneous in regard to himself; and the question verse to, that of the appellants; and it was is, whether he is not entitled to maintain the right and proper that all the parties should appeal separately, for his own interest, although have an opportunity of appearing before the it is deserted by all the other defendants. We court, so that one final decree, binding upon all think that he is, otherwise an irreparable in the parties having a common interest,' might jury might be inflicted upon him by an er be pronounced. roneous decree, for which the law would not Upon the whole, therefore, our opinion is that afford him any redress. The decree in this the appeal must be dismissed with costs against case is in fact against him as principal, and all the defendants except Todd, and as to him against the other defendants in aid of him, for it is to be retained for a hearing upon the distinct portions of the purchase money re- merits. ceived by them under the contract of sale made by Todd, and stated in the bill and answer. The decree may be entirely right in regard to the other defendants, and yet it may be er.
*ADAM S. MILLS et al., Plaintiffs in [*523 roneous as to Todd. He has, or at least may
Error, have, a distinct and independent interest in the controversy in respect to which he is entitled to WILLIAM G. BROWN et al., and the County be heard in this court.
of St. Clair, Defendants in Error. The proper rule in cases of this sort, where there are various defendants, seems to be that Writ of error to Supreme Court of State-ju. all the defendants affected by a joint decree
risdiction. (although it may be otherwise, where the defendants have separate and distinct interests, writ of error to the Supreme Court of a State, in
The Supreme Court bas not jurisdiction on a and the decree is several, and does not jointly which the judgment of the court was not, pecessaraffect all), should be joined in the appeal; and lly, given on a point which was presented in the if any of them refuse or decline, upon notice
case involving the constitutionality of an act of
the Legislature of the State of Illinois asserted to and process (in the nature of a summons and violate a contract. severance in a writ of error) to be issued in the The Supreme Court will not, when requested by court below, to become parties to the appeal, in a case in which it has not jurisdiction to afirm
the counsel for plaintiffs and defendants in error, then that the other defendants should be at
or reverse the judgment of the court from which liberty to prosecute the appeal for themselves the same has been brought by a writ of error to a and upon their own account; and the appeal State court, examine into the questions in the case
Consent will not give ju. as to the others be pronounced to be deserted, risdiction. When the act of Congress has so careand the decree of the court below as to them fully and cautiously restricted the jurisdiction conbe proceeded in and executed. In the present ferred upon this court, over the Judgments and de
crees of the State tribunals, the court will not er. case what has occurred is equivalent to such ercise jurisdiction in a different spirit. proceedings. All the defendants originally claimed an appeal; some of them have declined to pursue it at all others have deserted itesined I Mentor to the Supreme Court of the State of it was pending in this court; and, therefore, The plaintiffs in error instituted a suit in the
Circuit Court of the State of Mlinois, claiming, to be raised here are, 1st. Whether the Act of by a bill filed in that court to hold under an Assembly of 1819 was not a contract with the act of the Legislature of Illinois, an exclusive said Wiggins, his heirs and assigns; and, 22. right to erect a ferry on the Mississippi River, Whether the Act of 1839 does not impair the from land owned by them, in the city of St. contract. Louis, Missouri. The defendants in the suit *These points are not directly stated (*527 denied the right thus set up, and claimed the in the pleadings, nor are they noticed in the right to set up another ferry, from Illinois to decree of the Circuit or Supreme Court of the St. Louis, under other acts of the Legislature State. Yet if it appeared from the bill that the of Illinois. The case was, after a decree of the court could not have sustained the demurrer Circuit Court in favor of the defendants, car without considering and deciding these points; ried by the plaintiff by appeal to the Supreme if they were necessarily involved in the decision Court of the State, where the judgment in favor of the case, as presented by the bill and demur. of the defendants was affirmed. The plaintiffs rer, this court would have jurisdiction upon prosecuted this writ of error, on the ground the writ of error, although they are not exthat the act of the Legislature of Illinois, pressly stated in the decrees to have been raised passed subsequent to the act which had author and decided. ized the plaintiffs to erect their ferry, was a It is unnecessary for the purposes of this violation of the contract made with the plain- opinion to state the contents of the bill. Intiffs by the act of Assembly.
deed, as concerns the question before us, it The decision of the Supreme Court of nl- could not well be understood without giving linois, which was in favor of the defendants, the whole bill in its own words. It is sufficient was given upon other questions presented in the to say that we have carefully examined it, and case, besides the questions on the contract made are satisfied that the points proposed to be by the first act of the Assembly of Illinois. raised here, were not necessarily involved in the
The counsel for the plaintiffs in error pro-judgment given by the State court. On the con526*) posed to the court *that a decision upon trary, we think it may have come to the conthe whole merits of the case should be made, clusion that the demurrer ought to be sustained although it might be considered that the court i on other grounds, and that the bill was not so had jurisdiction of the case on the writ of er framed as to require a decision upon these ror; the questions in the case being of great questions. importance, and the parties being willing and It is true that the plaintiffs and defendants desirous to have them decided by this court. in error have both waived all objections to ju
The case was argued by Mr. Bogy and Mr. risdiction, and have pressed the court for a deJones for the plaintiffs in error, and by Mr. cision on the principal points. But consent will Key and Mr. Reynolds for the defendants. not give jurisdiction. And we have heretofore,
on several occasions, said, that when the act of Mr. Chief Justice Taney delivered the opin. Congress has so carefully and cautiously reion of the court:
stricted the jurisdiction conferred upon this This case is brought here by writ of error to court, over the judgments and decrees of the the Supreme Court of Illinois under the 25th state tribunals, it would ill become the court section of the Act of 1789.
to exercise it in a different spirit. And it cerIt appears that the Legislature of Ilinois, by tainly could not be justified in expressing an a law passed March 2, 1819, granted to a cer- opinion favorable or unfavorable as to the cor. tain S. Wiggins, his heirs and assigns, the right rectness of this decree, when it has not the to establish a ferry, upon his own lands, across power to affirm or reverse it. the Mississippi, near the town of Illinois.
The writ of error must therefore be dismissed. By a subsequent Act of March 2, 1839, the Legislature of Illinois granted to the County of St. Clair, in that State, and to certain commissioners in behalf of the county, the right to locate a road and ferry landing between Cahokie *JOSHUA MAURAN, Plaintiff in Error, ("528 Creek and the Mississippi River, opposite to St. Louis. And the commissioners appointed by this law proceeded to lay out the road and es
EDWARD BULLUS, Defendant in Error. tablish the landing on certain lands which belonged to the plaintiffs in error; and to which, Construction of a letter of guaranty-evidence by sundry conveyances, they derived title from
-practice. the said Wiggins.
In the construction of all written Instruments, The plaintiffs in error thereupon filed their to ascertain the intention of the parties is the bill in the Circuit Court of the State, praying great object of the court, and this 18 especially that the County of St. Clair and the said commissioners should be enjoined from further pro- strued strictly as mere matters of legal right. Tbe
Generally, all instruments of suretyship are conceedings under the act of Assembly last above rule is otherwise where they are founded on a valmentioned. The respondents, the present de
uable consideration. fendants in error, appeared and demurred gen NOTE. -As to guarantles, continulog and other, erally to the bill; and upon final hearing of the and construction of, see note to Drummond . cause, the demurrer was sustained by the Cir. Prestman, 12 Wheat. 616; and note to Edmon
ston v. Drake, 5 Pet. 624. cuit Court and the bill dismissed. From this de.
Construction of guaranties. cision the complainants appealed to the Supreme A guaranty should recelve a fair and reasonable Court of the State where the decree of the Cir. Interpretation, so as to attain the object for wbied
the instrument was designed, and cuit Court was affirmed. The points proposed which it le to be applied ; not with a technical
he purposes to
Isterior to the Gisterict Courthode teland.
twenty-nine thousand six hundred and ninety. The case, as stated in the opinion of the five dollars and eighty-six cents, and that th, court, is as follows:
witness was unable to pay anything. That at “The defendant in error and Joshua Mauran, the time of forming the copartnership, his Jun., of the city of New York, on the 8th of father, the defendant, was in New York, with September, 1838, entered into articles of co whom he conversed relative to the terms of the partnership in the trade and business of general partnership. That he showed his father the shipping merchants, and of buying and selling articles, or the minutes from which they were merchandise on their own account, and also on drawn, and is satisfied that the conditions were commission for the account of others, which fully known to him. But the witness stated was to continue three years. Mauran agreed to that he did not know of his father's having any pay into the firm as capital stock such sums as knowledge that the firm were to settle and pay he should be able to realize on closing the busi. the debts owing by the witness. ness of merchandising in which he had been “The witness stated that certain loans were engaged. Bullus agreed to pay a sum of from made by the firm to him in anticipation of the twenty-eight thousand to thirty thousand dol. receipts from the old concern, which were lars in cash.
charged. After the completion of the articles of “And it was stipulated that Mauran should copartnership, the witness delivered to his father not withdraw from the concern more than two a paper drawn by the attorney who drew the thousand dollars per annum, nor Bullus more articles, for his father's signature, and that his than three thousand, unl by consent of the father did not sign the paper, but after his recopartners in writing. Mauran covenanted that turn to Providence sent the letter of guaranty. within a reasonable time he would pay the Many of the debts of his old concern, the wit. debts owing by him, out of his private funds; ness stated, became due before sufficient funds and that on or before the 8th of September in- could be collected from the same to meet them, stant, he would give to Bullus satisfactory Be- and these debts were paid by the firm. That curity for the performance of this covenant. this was a mode of settlement of the accounts
"On the 9th of September, 1836, the defend of the old concern not originally contemplated. ant below wrote to Bullus the following letter: His father often inquired what the deficiency 'Mr. Edward Bullus,-Dear Sir,--As you are of the old concern would amount to, but he did about to form a connection in the mercantile not know, to the knowledge of the witness, business in the city of New York with my son, that the old concern was indebted to the firm. Joshua Mauran, Jun., under the, firm of Mau *“That the firm, on their failure, as- [*530 ran & Bullus. And, as the said J. Mauran, signed all their property and estate to William 529*] *Jun., having been, and is at this time D. Robinson, including the debts of the old prosecuting mercantile business in that city, on concern, which amounted to the sum of twelve his own account: now, therefore, in considera- thousand four hundred and eighteen dollars and tion of the same and at the request of Joshua ninety-five cents. These debts were credited Mauran, Jun., I hereby agree to bear you harm to the stock of Joshua Mauran, Jun., and at less in regard to the closing up and settlement the time they were all, except one of George of the said Joshua Mauran, Jun.'s former busi. Bucklin, of about eighteen hundred dollars, ness, and I hereby guaranty you against any considered bad; and that one had been released, logs or liability you may sustain from the form- though the witness considered him bound in er business of said Joshua Mauran, Jun., etc. honor to pay it. Various accounts between Bigned, Joshua Mauran.'
the firm and Joshua Mauran, junior and senior, “The action was brought by Bullus on this and other persons, were given in evidence. guarantee. On the trial an account against the “The defendant introduced his son Suchet old concern of Joshua Mauran, Jun., with the Mauran as a witness, who stated that his father firm of Mauran & Bullus, was given in evi. brought with him on his return from New dence, from which it appeared that the old con- York, about the 8th of September, 1836, a bond, cern was indebted to the new the sum of five binding him to pay the debts of Joshua Mauran, thousand four hundred and three dollars and Jun. It was under seal, and the witness read seventy-five cents. And it was proved by it; and it was, as he believes, in the handJoshua Mauran, Jun., that the partnership con writing of Mr. Bonney, of the city of New tinued until August, 1839, when the firm failed. York, who wrote the articles of copartnership. alcety which would defeat the intention of the par. on the faith of one interpretation, that will prevall, ties, and render them unsafe to rely upon.
although it be one which is most for the interest of rence v. McCalmont, 2 How. 426; Lee v. Dick, 10 the guarantee. Bell v. Bruen, 1 How. 186; LauPet. 482 ; Bell v. Bruen, 1 How. 169 ; 17 Pet. 161. rence v. McCalmont, 2 How. 449; 1 Pars. Cont.
The guarantor may be held, although no sult 495.
Maggs V. Ames, 4 Bing. 470; Con antor is discharged. Ibid; Russell v. Perkins, 1
The construction of a guaranty is precisely the
That his father would not sign the bond, but that the said Mauran & Bullus, by assigning sent the letter of guaranty. The bond remained the uncollected debts due to the said Joshua among the loose papers of his father for some Mauran, Jun., to the said Robinson, their ustime, but after a diligent search could not be signee, and placing them entirely beyond the found. That the bond, by its terms, required control, or agency and management of the de. his father to pay all the outstanding debts of fendant, had discharged the defendant from Joshua Mauran, Jun., to his creditors, or to any liability which might originally have arisen whoever might pay them.
from said letter of guaranty. “The evidence being closed, the defendant "Which instruction the court refused to give; below moved the court to give the following but instructed the jury that, if they should find instructions:
a verdict for the plaintiff, they ought to de. “1. That said letter of guaranty of the de. duct from the amount of the plaintiff's claim fendant, dated the 9th of September, contained in the writ, the full value of the debts of the no authority to the said Mauran & Bullus to pay said Mauran, Jun., 80 assigned, and charge it any part of the debts of the said Joshua Mau- against the claim of the plaintiff, and render a ran, Jun.'s old concern; that if it authorized verdict in his favor for the balance only, after any payment of said debts by any person, it such deduction. was by the said Edward Bullus alone; and that “To the instructions refused and those given the said Edward Bullus could not recover said the defendants excepted.” sum of five thousand four hundred and three The jury, under the instructions of the court, dollars and seventy-five cents, or any part found a verdict in favor of the plaintiff for thereof; inasmuch as he had paid no part thereof, three thousand seven hundred and sixty-four the whole having been paid by the said Mauran dollars and twenty-five cents, on which a judg: & Bullus.
ment was entered. The defendant prosecuted "Which instruction the court refused to give, this writ of error. as prayed for; on the contrary, they instructed The case was argued by Mr. Whipple for the the jury that if, from the evidence submitted plaintiff in "error, and by Mr. Z. Col. ('532 to them, they were of opinion that at the time of lins Lee and Mr. Southard for the defendant. signing said letter of guaranty, it was under- Mr. Whipple contended that the obligation of stood both by the plaintiff and the defendant that Joshua Mauran, as contained in his letter of 831*) the plaintiff was to be at liberty to *pay guaranty of 9th September, 1836, to Edward the said debts of the said Joshua Mauran, Jun., Bullus, was confined to an agreement to bear either out of his own private funds or out of him harmless in regard to the closing up and the partnership funds of the firm of Mauran & settlement of the former business of Joshua Bullus; and, in either case, the plaintiff was to Mauran, Jun., and against any loss or liability be entitled to indemnity therefor, under and in he might sustain from the former business of virtue of the said letter of guaranty; and if Joshua Mauran, Jun. It did not contemplate they were of opinion from the facts in said case the interference of Joshua Mauran, Jun., in that no funds whatsoever had been paid into the closing up of that business, nor that any the partnership by the said Mauran, Jun., as a money of the firm of Mauran & Bullus should part of the capital stock thereof, and that be taken to pay the former debts of Joshua all the capital stock had been paid by the said Mauran, Jun. if, the contrary to this under Bullus; and that he was and still remained standing of his responsibility, Mr. Bullus had a creditor of the firm to the full amount of such acted otherwise, he had no claim under the capital stock; then the plaintiff was entitled to letter of guaranty. recover in the present suit, such sums of money That the said letter of guaranty of the 9th as he had paid in discharge of the said debts of of September contained no authority to Mau. Mauran, Jun., either out of his own private ran & Bullus, or to Edward Bullus to pay any funds or out of the funds of the said firm of part of the debts of Joshua Mauran, Jun.; but Mauran & Bullus, for which he had not other that it was a simple indemnity against any wise received any indemnity.
damage which the said Edward Bullus might “2. And the defendant's counsel prayed the unavoidably sustain from the closing up of the court further to instruct the jury, that, even if former business of Joshua Mauran, Jun. said letter had imposed upon said defendant The construction given to the letter by the any obligation to pay said debts to the said court below imposed upon the defendant Edward Bullus, or to the said Mauran & Bullus, present liability for the whole amount of the unless his undertaking manifests a clear intention V. Palge, 24 Me. 73. But see Lewis v. Brewster, to bind himself for that debt. The guaranty can- 2 McLean, 21; Foote v. Brown, 2 McLean, 369. not be construed beyond the plain and obvious im. A commercial guaranty is not negotiable paper. port of its language. Ibid; Russell v. Perkins, 1 Birckhead v. Brown, 6 HIII, 634. Mason, 368.
In the case of a guaranty limited to a single If the guaranty be that a note is collectible, le
transaction, the guarantor is entitled to notice of gal proceedings must be resorted to against both
the advance or credit given under it, within a rea. maker and indorser, before the guarantor is liable.
sonable time; whereas, in the case of a continuing Loveland v. Shepherd, 2 Hill, N. Y. 139 ; Vander
guaranty, in which a series of transactions is in veer v. Wright 8 Barh. 647; Blanchard 'v. Wood, contemplation. It will be sufficient to give notice of 26 Me. R58.
the amount for which the guarantor is responsible,
within a reasonable time after the transactions are The Indorser of negotiable paper is entitled to closed, and notice of each successive transaction as strict notice, but the guarantor is only entitled to It arises nerd not be glven. Oolon Bank v. Coster, notice when he may be prejudiced by the want of 3 N. Y. 203. it. Oxford Bank v. Haynes, 3 Pick. 423; Talbot As to notice, see also Edmonston V. Drake, 5 v. Gay, 18 Pick. 534; Cannon v. Gibbs, 9 Serg. & Pet. 624 : Mussev v. Raynor, 22 Pick. 223: Lawson R. 202 ; Phillips v. Astling, 2 Taunt. 206; War- v. Townes, 2 Ala. N. S. 373; Oaks v. Weller, 13 rington v. Furber, 8 East, 242; Grice v. Ricks, Vt. 106: Sollee v. Mengee, 1 Ball. S. C. 620; 3 Dev. N. C. 65: Wildes v. Savage, 1 Story, 26; Wildes v. Savage, 1 Story, 26 ; Lane v. Levillian, Walton v. Mascall, 18 Mees. & W. 72, 452; Cooper' 4 Ark. 70; Howev. Nichol. .2 Me. 175.