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overruled by the twenty-eighth rule of prac-chancery practice in Louisiana mean the rules tice for the courts of equity of the United prescribed by this court for the government of States. That rule provides for bringing wit- the courts of the United States, under the Act nesses before the master, for their compensa- of Congress of May 8th, 1792, ch. 137, sec. 2. tion, for an attachment for a contempt, when These rules recognize the appointment of a a witness refuses to appear upon subpæna; master; the court below, in making this referand the last clause of it, allowing the exami- ence, acted under them and the mandate, and nation of witnesses viva voce, when produced it could not, therefore, sustain the exception to in open court. We think the same reasons the master's report. On the second exception, which allow it to be done in open court permit we need only remark that the master appreit to be done by a master. But it is said the hended rightly the decision and mandate of the decree of the District Court does not provide court. The payment to Morse by the defendfor the payment of costs. This, too, is a point ant was not considered an expenditure on acof practice, which we remark need not be a count of the property, nor on account of Livpart of the decree or judgment, though it often ingston. It was intended to be excluded from is so; as the payment of them in most cases the credits to which the defendant was entitled. depends upon rules, and when rules do not ap- The third exception has been already disply, upon the court's order, in directing the posed of. It was only a permission to the taxation of costs.
master to certify that his report contained all We now proceed to examine the exceptions the evidence taken under the reference. taken by the defendant to the master's report. The fourth and seventh exceptions, on acThe first, “That chancery practice has been count of their generality and indefiniteness, abolished by a rule of the District Court of may be considered in connection. The first of Louisiana, and that such proceeding is un- them is that the master, in making his estiknown to the practice of the court,” is not an mates and calculations, has not pursued the exception to the report, but a denial of the mandate of the court, and the seventh is that propriety of the reference to the master; also, the master erred in all his charges against the of the court's authority to make such a refer- defendant, and failed to allow the defendant ence under the mandate; and involves the as. his proper credits. In what particular the mansertion that the rule, if any such exist, may date has not been pursued is not stated. It is control the mandate and set it aside as a general objection to the whole report, imput. nullity. No such rule appears in the record. ing to the master a misconception of the princiIf any such exist, it certainly was disregarded ples upon which the account was to be ken, in this instance (as it should be in every other and amounts to this, that the court shall see by the court), or was not deemed applicable to upon the face of the report and the master's a case like the one before it. We think the proceedings, error against the defendant, it occasion, however, a proper one for this court will correct it, though no exception has been to remark if any such rule has been made by filed. In this view of it the defendant shall the District Court of Louisiana that it is in be protected, if the court shall detect error in violation of those rules which the Supreme the report. As to error in charges, and a deCourt of the United States has passed to regu- nial of proper credits to the defendant, we relate the practice in the courts of equity of the mark that without some specification of erUnited States. They are as obligatory upon roneous charge, and of disallowed credit, it is the courts of the United States in Louisiana as impossible to determine what the defendant they are upo all other United States courts; objects to as a charge, or claims as a credit. and the only modifications or additions which was any credit refused which was claimed, can be made in them by the circuit or district : except that of the $1,000 to Morse? That, we courts, are such as shall not be inconsistent have said, was rightly refused. Was he not with the rules prescribed. Where the rules allowed all other credits on the general account prescribed by the Supreme Court to the circuit of expenditures ? Did the defendant, whilst courts do not apply, the practice of the circuit the reference was in progress, or after the reand district courts shall be regulated by the port upon it was made, claim any credit by the practice of the High Court of Chancery in exhibition of any account? Did he ask to England. The parties to suits in Louisiana introduce any evidence to the master in suphave a right to the benefit of them; nor can port of any credit? Did he claim any other they be denied by any rule or order, without credit than such as are to be found in the accausing delays, producing unnecessary and op. count, giving, on his own oath, a statement pressive expenses, and in the greater number of *of his expenditures, and of the rents (*370 instances, an entire denial of equitable rights. of the property, from 10th August, 1822, to the This court has said upon more than one occa. 26th January, 1829? Nothing of the kind ap369') sion, "after mature deliberation upon pears. On the contrary, there is in the report able arguments of distinguished counsel against a statement by the master, which is conit, that the courts of the United States in Loui. clusive of the fact, as it has not been denied, siana possess equity powers under the Consti- that the defendant, though repeatedly called tution and laws of the United States; that if upon, and after having repeatedly promised to there are any laws in Louisiana directing the give an account, and having had five weeks to mode of procedure in equity causes, they are furnish it, refused to give any account. adopted by the Act of the 26th May, 1824, and The parties were summoned to the referenco will govern the practice in the courts of the by the master on the 6th of March. On the United States. 9 Peters, 657. But if there are 8th, the defendant Story appeared in person, po laws regulating the practice in equity causes, accompanied by counsel. Upon his suggestion, we repeat what was said at the last term of bowever, that one of his counsel was absent this court in Ex-parte Poultney v. The City of from the city, and that he had been so much Lafayette, 12 Peters, 474, “That the rules of l occupied as not to have had leisure to com.
plete his account, with his request that the Under such a claim he will be allowed nothing. hearing should be postponed, though it was Methodist Episcopal Ch. v. Jacques, 3 Johns. opposed by the complainant's counsel, the Ch. 81. master adjourned the reference to give the de Six of the exceptions having been disposed of, fendant time to furnish his account, and to the seventh only remains to be considered. It surcharge the account of the expenditures and is, “that it appears from the master's report rents up to the last of January, 1829. The that the stores were rented from November to right to correct any errors in that ac- November, and he erred in assuming the 1st count was conceded to him, the account April as the period of payment of annual rent.
given in evidence subject to such It was said in argument that, computing the concession. Two witnesses were then sworn payment of annual rent in extinguishment of on the part of the complainant, without the defendant's debt on the 1st April, is in objection, and were examined by both parties. effect to deprive him of interest for a part of The meeting was then adjourned to the next the year, as the aggregate of the rent was not day, the parties again attended, but the wit. in fact received; that it is to allow interest nesses who had been summoned not being pres- upon rents and profits, contrary to the man. ent, the defendant again suggested the pro- date, and established decisions. This would priety of adjourning for a few days, when he certainly be so if the rent had only been reshould be ready to present his account, which ceived at the end of the year. But if the rents he had almost ready. It was assented to. The were payable at intervals in the year, and meeting was adjourned to the 24th of March. were actually so received; and if the half, or On that day the parties appeared before the any other portion of the ascertained annual master, a witness was examined on the part of rent shall extinguish the interest upon the debt the complainant, and the defendant again de when it was received, and reduce the principle, clared he had been prevented by important why should the whole debt continue to draw business from completing his account; and he interest ? Surely, to allow this would be to requested a little more time to make it com- vary the obligations of these parties to each plete. The complainant's counsel consented to other, differently from what would be their rean adjournment to the 5th of April. On that spective rights in any other case of a debt day the defendant again requested further drawing interest upon which a payment had time; the case was continued to the 15th of been made, which paid the interest and part April, and then the defendant said he did not of the principal. Is there any difference in the intend to furnish any account, but urged that effect of a payment, whether made in person as the account of expenditures and rents up to by the debtor, or if it arises from the income the last of January, 1829, had been received as of his property! The correct rule in general evidence, that it must be considered as con is that the creditor shall calculate interest clusive of the expenditures which had been whenever a payment is made. To this interest made on account of the property. This was the payment is first to be applied; and if it allowed to be correct. We have, then, the re- exceed the interest due, the balance is to be fusal of the defendant to furnish an account, applied to diminish the principal. If the pay. and proof that he did not claim any other ment fall short of the interest, the balance of credit than those in that account. With what interest is not to be added to the principal so propriety can a denial of credits be urged as an as to produce interest. This rule is equally apexception to the report? The defendant was plicable, whether the debt be one which ex. the only person who could furnish an account pressly draws interest, or on which interest is of the credits to which he supposed himself to given in the name of damages. Smith be entitled. He refused to do so. To allow him Shaw's adm'r, 2 Wash. C. C. Rep. 167; 3 Cowen, to say there is error in the report in this re- note A, 87. This, then, being the rule, if the spect would permit him to take advantage of fact is probable in this case that the income his own wrong, and to defeat the complainant's of the property received at any time in the rights by artifice. Nor is the account of ex course of the year did pay interest and a part penditures and receipts up to the last of of principal, the defendant cannot complain; January, 1829, now examinable (except as to he being the receiver of the money, and refusmere errors in computation), either re-ing to give any account of the aggregate, or gards the principal or interest; the defendant its parts when received, *if the master (*372 being concluded by his admission of it, has taken a date for the computation of the 371*] *when he claimed the expenditures as aggregate rent as payment which places the a set-off against his own statement of the parties upon an equality. Besides, the mandate rents.
does not restrict the right of the complainant What has been said of the fourth and seventh to a credit for the aggregate of the rent at the exceptions applies to the fifth, which is that a end of the year. It does not allow interest reasonable allowance should have been made upon the rent, but directs the rents to be apto the defendant for the costs and risk of colplied to the payment of the sums incurred in lecting the rents. If under the mandate, any building and repairing; second, to the interest such allowance could be made, the claim for it on the sums which have been advanced on the should have been presented to the master sup-loan, or in the improvement of the lot; and, ported by evidence of what was the customary third, to the discharge of the principal of the compensation for such services, if the service loan. The fair inference from the silence of is not compensated by a law of Louisiana. A the mandate as to the time when the rents are mere claim for a reasonable allowance cannot to be credited is, that they are to be so when give a right to any, and of course is no valid they are received if the interest and part of exception to the report. It is the case of a the principal are paid. This is the general rule party before a master, who merely claims for for the application of payments, and is the general expenses, without stating particulars.' rule of equity which does substantial justice.
What, then, is the case of the defendant in this But suppose, as was urged in argument, that particular! He has a debt drawing five per the mandate had directed an annual applicentum interest, yielding annually $1,135.55, cation of the rent of the premises to the pay. and is in possession of the property of the ment of the debt of the defendant, without complainant, giving a rent annually, after de specifying that the interest was to be calculatducting $700 for repairs and taxes, of $8,000. ed to a date contemporaneous with the last But, it may be asked, by what means or evi- payment of the rent, and the debt was one dence did the master ascertain the amount of carrying interest de die in diem. The mandate rents, and that they were paid at such times, could only be executed according to the general and in such amounts, as to justify the compu- rule in the case of such a debt, by making tation of the annual aggregate as a payment every receipt for rent, in discharge first of the before the expiration of the year? First, he interest, then of the principal. Raphael v. must have known that leases of houses are not Bæhm, 11 Vesey, 91. The mandate is to be mode, either in Louisiana or elsewhere, for the interpreted according to the subject matter to payment of the entire rent at the end of the which it has been applied, and not in a manjcar; next, he had an account made by the de- ner to cause injustice. itndant, verified by his oath, showing that for This is not like the case of a decree direct. seven years the rents of this property were re-ing annual rents, with the view of compound. ceived by him, principally in monthly pay: ing interest. The question now under conments; in the year 1828 altogether so; and sideration has been ruled as it is now decided, then, at intervals of two, three, or four months, in Bennington v. Harwood, 1 Turner & Russell, in sums over seventeen hundred dollars up to Ch. Rep. 477, a case upon a master's report of three thousand. The rents received in Janu. an account, under a decree that the master ary and February, 1828, exceeded the amount should set an annual value by way of rent of interest upon the principal debt or loan by upon the premises, the mortgagee being in possix hundred dollars. The rent in that account, session; the master of the rolls decided, that a received on the 26th January, 1829, was $950, mortgagee can never receive more than his and the account states a thousand as due on principal and interest, and says, "now, if in the 1st of February, 1829. The amount of the the early part of the year a payment is made annual rent the master ascertained from the to him, exceeding the interest which is then tenants, who were witnesses before him, not to due, and he is nevertheless allowed interest on be less than eight thousand dollars. Let it be the whole of his principal down to the end of remembered that the question now is not the year, what is the profit which he derives whether the defendant shall pay interest upon from his mortgage, in the interval between the rents and profits, but the time when he shall date of that payment, and the date of the credit a payment upon the debt which dis- annual rent? It is clear that a part of his charges the interest and a part of the princi. principal has been repaid to him, and yet he pal. His debt was carrying interest, and there receives interest upon the whole of it; in other fore his receiving the rents of the property at words, he gets more than five per cent. on the any time in a sum sufficient to pay the interest sum for which he is actually a creditor. Sup. and part of the principal, should be applied at pose that the sum paid to Eadon on the 2d the date when it was received. The defendant February had been equal to the whole of the could not claim an exemption from the opera- £500, with the arrears of interest calculated to tion of this general rule, in virtue of any re- that day, would he have been entitled to lation between himself and the complainant, interest up to the 5th of July! Is it possible as trustee, bailiff, attorney, or agent of the that such should be the effect of a direction to latter; who was always ready to pay when make annual rents? The sums which a mort. called upon, who had not mingled the rents gagee in possession receives in respect of the with his own money, and not used it as his mortgaged premises, at the times intermediate own, or that it had been kept on hand to abide between the dates of the annual rents, the decree of the court. If he had been in *must be applied, when they exceed [*374 either of these attitudes, especially the latter, interest, to the reduction of the principal; and 373"] his own oath, if not controlled by *other, in the present case, that course is clearly pretestimony and the circumstances of the case, scribed by the very words of the decree.” Now, would have entitled him to a continued ac. what was the decree in Bennington v. Har. cumulation of interest upon the debt, without wood ? It was the usual decree against a any credit of the rent, until the final decree mortgagee in possession, containing the comhad directed a sum to be paid to the com mon directions that the master should tax him plainant. Under the circumstances of this the costs of suit, and so set an annual value by case, the defendant refusing to give any ac- way of rent upon the premises, with further count, yet admitting that he had received the directions that the sums received in February, rents, at intervals, in the year; when we con- 1805, were to be applied forthwith, first to the sider such to be the usual way of renting discharge of the then existing arrear of interhouses, he having agreed that the certificates est, and next to the diminution of the principal. of the tenants should be received as evidence of The master made the rest on the 5th July, inthe amount of rents respectively paid by them stead of doing so in February; and the counsel -the tenants having proved the amount of the contended in that case-as counsel have done annual rent of the premises—we conclude that in this—that a direction for annual rents, ex: the master did right in assuming an inter- cludes all rents which are not annual. But mediate point in the year for the computation that position was not sustained by the Master of the annual amount of rent, in the absence of of the Rolls, on general principles, though he all proof when its parts were paid; and that concludes by saying in the present case, "that it was the fairest way of carrying out the sub-course is clearly prescribed by the words of stantial intention of the mandate of this court. the decree." The defondant bere is sub
stantially a mortgagee in possession, having a | ter of litigation can be made, without a person Jebt due to him, carrying interest de die in who has an interest having that interest in any diem; and must abide the general rule for the way concluded by the decree. Bailey v. Inglee, application of payments to it.
2 Paige, 122. See, also, Joy and Wurts, Wash. This, then, is not a case in which the defend- C. C. R. 577, where the rule is comprehensively ant has been deprived of a day's interest by expressed, in respect to active and passive the master's report, nor one in which interest parties, and where a party is not amenable to has been allowed upon rents and profits; but a the process of the court, or where no beneficial case in which the application of a sum received purpose is to be effected by making him a by the creditor, is made to prevent his whole party, such interest must be a right in the debt from drawing interest after a part of it subject of controversy which may be affected was probably paid. Of this there is a violent by a decree in the suit. Such is the case as presumption. The general principle is, as it to Cora Barton, in this cause. The subject matwas ruled in Breckenridge v. Brooks, 2 A. R. ter is to obtain from the defendant money deMarshall, 341, that a mortgagee in possession creed to be due to Edward Livingston, and the is not to pay interest upon rents; but as the surrender and reconveyance of property formChief Justice said in that case, "We will not ing a part of the real estate of Edward Livingsay there may not be special circumstances ston. After his death, his widow, as executrix, which would justify allowing interest upon was made a party to the bill; and the decree rents received by a mortgagee. We say in this, in that suit cannot in any way determine the that whenever a mortgagee in possession, hav- rights of Cora Barton in her father's estate. ing a debt due to him, carrying interest de die Besides, if there was any force in the objection in diem, shall collect an amount of rent, which it comes too late, for where a complainant will extinguish the interest and a part of the omits to bring before the court persons who are principal, that he is bound so to apply it.” In necessary parties, but the objection does not Fenwick v. Macey's Executors, 1 Dana Rep. appear upon the face of the bill, the proper 286, rents received by a mortgagee were direct- mode to take advantage of it is by plea or ed to be applied as they accrued, to keep down answer. If the objection appears on the face the interest. In Reed v. Lansdale, Hard. 7, it of the bill, the defendant may demur. Mitchell was ruled that the equitable rule in redeeming v. Lenox, 2 Paige, 280. The objection of a miswhen the mortgagee is in possession, is to joinder of complainants should be taken either charge the profits of the mortgaged property by demurrers or in the answer of the defendagainst the principal and interest.
ants: it is too late to urge a formal objection Having thus disposed of the exceptions to of this kind, for the first time at the hearing. the report, and considered the principal argu- Trustees of Watertown v. Cowen, 4 Paige, 510. ment of counsel against its confirmation, we so, also, it was ruled in 3 Paige, 222. We remark that there is nothing on the face of the might crowd this opinion with decisions to the report adverse from the defendant's rights same point from the English and American which should cause it to be set aside. Even chancery reporters. But further the objection with the computation of the rents as a credit cannot prevail, for it does not show that the on the 1st April, he is still a gainer; for the process of the court could reach Cora Barton. difference between the calculation so made, and in Mallow v. Hinde, 12 Wheaton, 193, it was what would have been the amount he would *ruled that wherever the case may be [*376 have received if the reits had been credited on | completely decided as between the litigant the 1st November, is more than compensated by parties, an interest existing in some other perthe use of large sums of money received by son whom the process of the court cannot 375*] *him as rent, after the total extinguish- reach, as if such person be a resident of anment of his debt. The complainant, however, other State, will not prevent a decree upon the took no exception to the report, and it must merits. And, in the same case it was decided stand good against her.
where an equity cause may be finally decided We notice, in conclusion, an objection to the as between the parties litigant, without bring. report urged in the defendant's petition for a ing others before the court who would, gener. rehearing, and in the argument of the case. It ally speaking, be necessary parties, such is that the decree of the court below is incon- parties may be dispensed with in the Circuit clusive as to whom the property is to be recon- Court, if its process cannot reach them, as if veyed. This is not an objection which the they are citizens of another State. But when defendant can be permitted to urge. When he the rights of those not before the court are inshall obey the decree in reconveying and sur separably connected with the claim of the rendering the property, his responsibility will parties in the suit, the peculiar constitution of be at an end. As to the defendant, the decree the Circuit Court is no ground for dispensing of the court is conclusive against all persons with such parties. 12 Wheaton, 194. In what who may legally claim from him any interest ever point of view, therefore, the objection is on the property as devisee or heir of Edward considered, whether as to the interest of Cora Livingston. As to those, the law of Louisiana Barton in the suit, the time when the objection fixes their respective rights, and upon those has been made, or the manner in which it is rights this court has not, nor does it intend made, in not showing that the process of the to adjudicate in this cause. The general rule court could have reached her, is of no moment certainly is that all persons materially inter- in this case. ested in a suit ought to be parties to it, either This court, in regard to her, only directs her as plaintiffs or defendants, that a complete de- name to be inserted in the reconveyance, it cree may be made between those parties. Cald- having been ascertained by the master that she well v. Taggart, 4 Peters, 190. But there are is a forced heir of Edward Livingston, and that exceptions to this rule, and one of these is, fact being admitted by the defendant, and the where a decree in relation to the subject mat. 'admission of its correctness being the founda
The Code of
tion of its objection. The decree of the court In the District Court of Louisiana, the defendant below, affirming the master's report, and direct pleaded the plea of reconvention, which 18 au
thorized by the Code of Practice of Louisiana. ing a reconveyance of the property, is affirmed. The District Court, on the motion of the plaintiffs,
This cause came on to be heard on the tran- ordered the plea to be stricken out. script of the record from the Circuit Court of
Practice of Louisiana was adopted in Louisiana by
a statute of that State, passed after the Act of the United States for the Eastern District of Congress of the 26th May, 1824, regulating the Louisiana, and was argued by counsel: on con: practice of the District Court of the United States sideration whereof, it is ordered, adjudged and for the Eastern District of Louisiana ; and the decreed by this court, that the decree of the d as part of the rules of practice of the District said Circuit Court in this cause, affirming the Court, when the plea was stricken of. Held, that master's report be, and the same is hereby af.
the plea was properly stricken out. firmed. And this court doth order, adjudge and
Where a deed of trust was made to secure the decree, that the defendant do, on or before the upon the deed, the notes may be read in evidence
payment of certain promissory notes, in an action tenth day of the ensuing term of the said Cir to prove the amount of the debt intended to be cuit Court, pay to the complainant, Louise Liv. secured by the deed, without the notes having been
assigned by the payees to the plaintiffs, the trus. ingston, the sum of thirty-two thousand ninetees in the deed. hundred and fifty-eight dollars and eighteen The general rule is, that the allegations in the cents, with interest thereon, at the rate of five answer or plea in an action, and the proof, must per cent. per annum, from the 15th day of July authorize the proof offered by a defendant, it was 1837, to the time of payment. And this court properly rejected by the court. doth further order, adjudge and decree, that In Louisiana, when a contract having subscribing the said defendant Story do, on or before the witnesses to it is proved to have been made out of 10th day of the next term of said Circuit Court, res de at 'the place where the contract was made,
the State, the State courts presume the witnesses by deed convey to the said Louise Livingston and are not subject to process issued out of those and Cora Barton, all the right, title and intercourts. They therefore allowed secondary evidence
to prove the contract. This being the settled doc. est, in and to the premises in controversy, detrine of the Supreme Court of Louisiana, the Disrived to, and acquired by him, by the deed of trict Court of the Eastern District of Louisiana conveyance made by the said Edward Living properly admitted evidence of the handwriting of
the witnesses to a deed of trust, which had been ston, with covenants of warranty against him. executed out of Louisiana, to go to the jury. self, and his heirs, and all persons claiming by, There is a material difference between the laws through, or under him, the said Benjamin of New York and those of Louisiana, in relation to Story, and that he deliver said deed into said made before a notary and two witnesses, called
Contracts court, and that he deliver the possession of the authentic acts, are, by the laws of Louisiana, elepremises to said Louise Livingston, her agent vated above all others. A contract under seal' does or attorney, on or before the tenth day of the
not appear to be of greater dignity in Louisiana
than one without seal, and those who sue in the next term of said Circuit Court. And this courts of that State must abide the consequences cause is remanded to the said Circuit Court with of these rules. The validity and interpretation of 377*] instructions to carry this decree "into contracts are to be governed by the laws of the
country where they are made, but the remedy must effect. And it is further ordered, adjudged be according to the laws of the country where the and decreed, that said Circuit Court retain this sult is brought. certaining and decreeing the amount of the rents I Stereo for the Easternt District of Louisiana.
of of the premises from the first day of November, 1837, to the time when possession thereof shall be surrendered according to this decree, Mr. Justice M'Kinley delivered the opinion and with power to make such orders and de- of the cou crees as may be necessary for that purpose, and This case comes before this court upon a for the payment of the said rents from the said writ of error to the District Court of the Unitfirst day of November, 1837, to the time of the ed States for the Eastern District of Louisiana. surrender of the possession, with five per cent. The defendants in error commenced their interest on the said rents from the time said suit by petition in the court below, upon a rents were received to the payment thereof. deed of trust executed by Wilcox, one of the And this court doth further order, adjudge and plaintiffs in error, in the State of New York; decree, that the defendant do pay the costs by which he covenanted, among other things, in this court upon this appeal, and the costs to pay to the defendants in error the sum of of the reversal of the decree of the said Circuit twenty-five thousand two hundred and six dol. Court by this court, as its January Term, 1837; lars and eight cents, being the amount of cerand also such costs on the proceedings in the tain promissory notes, mentioned and enusaid Circuit Court in this cause as the said merated in said deed of trust, payable to Circuit Court shall tax and order to be paid, several persons in the city of New York. and that the said Circuit Court do issue exe- Others, to wit, James B. Hulin, Alfred Hencution therefor.
nen, and E. V. Jourdain, were made defend
ants to the suit, for the purpose of subjecting 378') *JOHN WILCOX et al.
money in their hands belonging to Wilcox to
the payment of the debt sued for, according to CHESTER HUNT et al.
the mode of proceeding in Louisiana. Wilcox Pleading—witness to contract, presumption as vention, claiming damages of the plaintiffs
pleaded a general denial, and the plea of recon. to residence-evidence-dignity of contract under seal in Louisiana.
below for breaches on their part of the (*373 covenants in the deed of trust, to be set off
against the amount sought to be recovered NOTE.-Lex loci, as to contracts, and their interpretation and validity, see note to 3 L ed. U. 8.
against him. 205, and 11 L. ed. U. S. 89.
At the trial the court ordered the plea of