#### *Aaron Gillett et al. vs. J. S. Powell, Adm’r. of E.*Gillett, *and William H.*Peyton, *Adm’r. of William S. Gillett.*

1. Partition may be effected amongst die distributees of an estate, if each, should purchase to about the amount of his share, give bond for the amount, and then the bonds should be settled ; each receiving or paying whatever amount his purchase might exceed or fall short of his share — the bonds then to be cancelled. But until such settlement and cancellation, there can be no distribution. Till then they would be liable on their bonds in case of any unexpected debt arising, or for any balance exceeding or falling short of their shares. In contemplation of law, it is not the property, (of which they are merely purchasers, as any other individuals would be,) but the money secured by the bonds, which is the subject of partition.

2. J. S. P. as administrator *de bonis non*of the estate of E. G. dec’d. under a decretal order of the Federal Circuit Court, directing said estate, both real and personal, to be sold, the former, by the marshall, and the latter, by the administrator, as well as the estate of W. S. G. dec’d. who had been the executor of E. G. proceeded to make a sale in January, 1832. There was an agreement between the surviving devisees of E. G. or rather between the husbands of his daughters, previously to the sale, that each should purchase to about the amount of the share of the estate to which his wife would be entitled; that bonds should be given for the amount of the purchases, which bonds, however, were not to be paid; but on a final settlement, after the decision of a suit then in the Federal Court, these *143should be mutually given up or cancelled. Defendant J. S. P. was a party to this agreement, had married a daughter of E. G. who died in Nov. 1832, and had employed certain persons to make purchases for him. Their receipts, of dates anterior to the death of his wife, purported to have received, as administrators of E. G. for his wife, the price of slaves purchased by them. A. G. one of th,e devisees of E. G.' was not a party to this agreement, hut his receipt of Nov. 1834, was produced for certain bonds received on account of his share of the estate, and some correspondence to show that the parties contributed to make his share equal to the others.

3. But the parties not having purchased to the exact amount of their interests — that of defendant, J. S. P., exceeding the *rest*— Held, that all the purchasers were liable on their bonds to make up the share of A. G., which was not ascertained till after the death of defendant’s wife, and that if defendant gave up the bonds of the purchasers, he would be liable as administrator, for so much money received. The estate of E. G., not being fully administered at the death of defendant’s wife, his marital rights did not attach, in respect of his agreement and purchase.

4. Where the funds of the wife, for which the husband is suing, are in a court of competent jurisdiction, an order to pay to the husband, is such an appropriation that the marital rights will attach, notwithstanding the subsequent death of his wife before the actual payment,

5. Certain funds of the estate of E, G., being in the Federal Court, a decree of that court, directing defendant’s proportionable share oí it to be paid him in right of his wife, *held*sufficient for his marital rights to attach.

6. The decree of the Federal Court directing the funds of the estate of E. G. in the hands of the Clerk, acting as Master, to be paid over in certain proportions to his distributees, held, not void for want of jurisdiction, because the relief claimed by the plaintiffs was refused, and the bill dismissed.

*7.*With respect to an inferior court of limited jurisdiction, the circumstances which give it jurisdiction must appear upon the face of its proceedings, and if they do not, the judgment will be void. But the judgment of a superior court of general jurisdiction, can never be void for want of jurisdiction. Nothing shall be intended to be out of its jurisdiction, which is not shown to be so in the course of the suit. However irregular and erroneous its judgment may be, it must be respected by every other tribunal, until arrested by the Court itself, or reversed for error on appeal.

8. According to the practice of the Courts of the United States, if the circumstances which give jurisdiction do not appear on the record, and the objection be taken in the course of the suit, they will refuse to entertain jurisdiction; or if the Circuit Courts should do so, the judgment may be reversed for error.

*1449. But it has never been held, that with respect to the judgments of other tribunals, the judgment would be void for such defect.

10. If any question of *civil*right, may be directly or *indirectly*brought before the Court, this constitutes it a Superior Court of general jurisdiction.

11. The allegation of the circumstances which give jurisdiction may be traversed in the Courts of the United States.

: 12. The jurisdiction of the Courts of the United States is not limited with respect to the matter of the civil action which shall be brought before them, when the parties, plaintiff and defendant, are citizens of different States, but only as to *persons.*

13. A limitation in respect of locality, does not render a court inferior, if there be no other limitation.

14. A decree may be made between co-defendants upon the proofs and pleadings in the cause, though the bill may be dismissed, with respect to the relief claimed by the plaintiff.

15. E. G. had executed a note to J. H., on the 1st of January, 1818; the latter had also an account against the former, for which W. S. G. had given his note, signing himself “Executor of E. G.”

16. In the account which was ordered to be taken in the Federal Court, between the Executor and legatees of E. G., these demands were brought forward. The Clerk reported in favor of the note, but against the account, on the ground that- it was extinguished by taking the note; that it became the personal debt of W. S. G., and as his estate was insufficient to satisfy a judgment obtained by complainants, there were no assets out of which it could be paid. The Clerk also reported, that the note and account were admitted by the Executor, in February, 1825. J. H. excepted to the Report, on the ground that his account was not allowed; but the exception was overruled, and the Report, in this respect, confirmed. The Judge in his decree stated that the exception was very clearly not tenable, and “ had been abandoned by the Solicitor.” Held, by this Court, that it was not competent for the representative of J. H. to renew the demand.

17. J. H. purchased property at an Administrator’s sale, gave his bond for the amount, and, on the same day, executed a mortgage, conditioned to be void on the payment of the sum stated in his bond. The mortgage made no reference to the bond, but on the production of the latter, it was found to have been altered, so as to be conditioned for double the amount actually intended to be secured. Although the alteration in the bond rendered it void, yet this did not affect the mortgage, which, it was held, must be taken as evidence of the debt. [1]

*145This case was heard by Harper, Chancellor, at Barn-well, May, 1841, on exceptions to the Commissioner’s Report. The facts of the case are fully stated in the Circuit decree. ‘

Harper, Ch. Elijah Gillett died in 1818, having made his will, by which, after some specific devises and bequests, he directed his whole estate, real and personal, to be equally divided between his six children, Wm. S. Gillett, Julia Gillett, Alexander H. Gillett, Lucy Gillet, Lavinia Gillett, and Aaron Gillett, and in the event of the death of either, under age and unmarried, the property given to such child by the will, to go to the survivors. He appointed several executors, .of whom Wm. S. Gillett alone, proved the will and qualified. By the will, Wm. S. Gillett was also appointed the guardian of his brothers and sisters, who were infants. In 1819, Wm. S. Gillett, having selected specifically for himself, as is supposed, one-sixth part of the testator’s estate, exposed the residue to sale at public auction, at which he himself was the principal purchaser. The proceeds of the sale were something more than $40,000. It is charged that Wm. S. Gillett, having authority under the will, sold other portions of the real and personal estate of the testator. On the first of June, 1819, Wm. S. Gillett confessed a judgment to James Hig-ginbottom and Wm. Provost, in the sum of $30,000 00,' upon a trust which was afterwards declared, to secure to his infant brothers and sisters and wards, any amount that might be found due by him to them, on account of their father’s estate. Subsequently to this, the Bank of Georgia, being a large creditor of Wm. S. Gillett, obtained judgment against him in the Federal Circuit Court at Charleston, and having issued execution, proceeded to enforce it against the property in his possession. The claim of the judgment confessed to Higginbottom and Provost being interposed, the Bank, on the 4th of April, 1827, filed their bill on the chancery side of the Federal Circuit Court, to set aside the last mentioned judgment as fraudulent, or otherwise to give their judgment the preference, except in so far as Wm. S. Gillett was actually indebted. *146to their *cestui que*trusts, at the time of his confession.

Several decretal orders were made in the cause; among others, one for the sale of the entire estate of Elijah Gillett, and Wm. S. Gillett; the real estate to be sold by the Marshal of the Court, and the personal estate, by the Admin-trator *de bonis non*of the estate of Elijah Gillett, his executor being then dead. In consequence, a sale was made on the 23d of January, 1832, for a small portion of cash ; for the residue, bonds with mortgages and personal security were taken. The securities taken by the Marshall on the sales of the real estate were returned by him into the Federal Court. The defendant J. S. Powell, states in his answer, that though true it is, he, as administrator of Elijah Gillett, did sell a large number of negroes of the said estate, nevertheless a considerable number of the s.aid negroes had been previously sold by the Marshal of the Federal Court, and the bonds and other obligations for said sale are now in the custody of the said Court. I infer that the bonds and securities taken by himself remain in his hands, though this does not plainly appear, but the view's I shall take may be applied according to the fact. A reference to the clerk, acting as master, was directed by the Federal Court, to ascertain and report the general statement of accounts between the executor and the estate of Elijah Gillett, also between the executor and the individual legatees, and for other purposes. A report was made, to which exceptions were taken. At the hearing, upon the report and the merits, a decree was made sustaining the judgment confessed to the trustees, Higginbottom and Provost, and referring back the report for further investigation. On the coming in of the second report, all the exceptions taken to it were overruled ; all the relief claimed by the bank of Georgia was refused, and the Court decreed that the report and- account be confirmed, and “ that the funds in the hands of the clerk, as master, be paid over in the following manner ; that is to say, to James Higginbottom, in right of his wrife Julia, one fourth part; to George *W.*Collins, in right of his wife Lucy, one fourth part; to the Rev. J. S. Powell, in right of his wife Lavinia, one fourth part; and to Aaron Gillett, the remaining fourth part.” The Circuit Court declares the purchase made by *147the executor, William S. Gillett, at his own sale, to be absolutely void, but adds, “ As the proceeds were in fact in our registry under a sale by our marshall, which no one was disposed to disturb, and it was thought to furnish the data for a fair distribution, the Court instituted the necessary inquiries to enable it to proceed toa final decree.” The property was therefore sold as the estate of Elijah Gillett; but as all the parties in interest coincided in desiring to confirm the sale, and as the claim of the devisees of Elijah Gil-lett, as preferred creditors, will more than exhaust the estate ofWm. S. Gillett, this is not material, unless with a view to one of the exceptions hereinafter to be noticed.

On appeal to the Supreme Court of the United States, the Court expressed the opinion with respect to Wm. S. Gillett’s purchase at his own sale, “that the sale having been made by a trustee to himself, must have been set aside and annulled on application of the *cestui que*trust, but no such application being made, it cannot be regarded as a nullity, as it regards strangers to the transaction.” The Court says in conclusion — “We think the application made of the money arising from the sale, by the decree of the Court below, was right, and it is affirmed,” and directs the bill to be dismissed with costs.

Wm. S. Gillett died in 1829, and administration of his estate was granted to James Higginbottom, who had married Julia, one of the daughters of the testator, Elijah Gil-lett. Higginbottom’s administration of the estate of Elijah Gillet was revoked, and administration of that estate committed to the defendant, J. S. Powell, who had married Lavinia, one of the daughters of the testator. James

Higginbottom died in-, and administration of the estate

of Wm. S. Gillett left unadministered was committed to the Defendant Wm. H. Peyton, as also administration of the estate of James Higginbottom.

Alexander H. Gillett, one of the children of the testator, died under age and unmarried. Administration on his estate was committed to George W. Collins, and on his death to the complainant, Barnet M. Enicks.

After the death of James Higginbottom, his widow married -Kottman.

Lucy, one of the daughters of the testator, married *148George W. Collins, before mentioned, and on his death, the complainant, Barnet M. Enicks.

Lavinia, the wife of the defendant, J. S. Powell, died in 1832, and her husband has taken out administration on her estate.

The Bill is filed generally for an account of the estate of Elijah Gillett, as supposed to remain unadministered in the hands of the administrator *de bonis non,*and also of the estate of Wm. S. Gillett. The Bill charges that the Court of the United States had no jurisdiction or authority to make distribution of the proceeds of the estate of Elijah Gillett, and that its judgment making such distribution is void. The defendant, J. S. Powell, relies by his answer on that judgment, and contends that by virtue of it, his marital rights attached on his wife’s share of the proceeds of the estate of Elijah Gillett, which were in the registry of the Court. A reference has been ordered and an account taken of the estates in question, and the cause now comes up upon exceptions to the Commissioner’s Report.

A Bill was also brought to the view of the Court, filed by John F. Peyton, administrator of George W. Collins, in which is brought in question the validity of a marriage settlement, alleged to have been made by the said Geo. W. Collins, previously to his marriage with Lucy Gillett ;* but it was stated at the hearing, that no question was made in relation to it, and I shall conclude nothing respecting it. .

Exceptions to the Report have been filed by the defendant, J. S. Powell, and on behalf of the infant children of James Higginbottom.

1 shall first consider the defendant’s 5th and 6th exceptions, as being the most material in respect to principle, and the amount involved.

The questions made by them are, whether the marital rights of the defendant, J. S. Powell, attached on his deceased wife’s share of her father’s personal estate, and of the proceeds of the real estate. There can be no question respecting the conclusion arrived at by the Commissioner, and the authorities referred to very fully sustain him, that the marital rights of a husband, in possession of *149a deceased wife’s estate as administrator, will not attach, until the estate has been fully administered, and partition or distribution has been made.

But it was contended that partition and distribution was, in fact, made by the sale of the administrator *de bonis non,*of the 23d January, 1832. Evidence was offered to show an agreement between the surviving devisees of Dr. Gillett, or rather between the husbands of the females, previously to that sale, that each should purchase to about the amount of the share of the estate to which his wife would be entitled; that it was understood that bond should be given for the amount of the purchases, which bonds however were not to be paid ; but on a final settlement, after the decision of the suit in the Federal Court, these should be mutually given up or cancelled. It appears that the defendant employed persons named Irwin, Colding and Bobo, to make purchases for him, (or having purchased, he took their purchases off their hands.) Their receipts are produced of the dates of Oct. 1st, 1832; August 4th, 1832, and Nov. 3d, 1832, (all previous to the death of his wife, who is stated to have died on the 12th of November, 1832,) specifying to have received of him, as administrator, for Mrs. Lavinia Gillett, the price of the slaves purchased by them. It is probable that at. the same time he gave up their bonds taken.for the purchase money. Aaron Gillett was no party to this agreement; but his receipt of the 18th Nov. 1834, is produced for certain bonds, received on account of his share of the estate, and some correspondence to show that the parties contributed to make his share equal to the others.

I have no doubt but that partition might be made in this way, if the distributees of an estate should purchase to about the amount of their shares; give their bonds for the amount, and then those bonds should be settled ; each receiving or paying whatever amount his purchase might exceed or fall short of his share, (for it is hardly possible that each should purchase to the exact amount of his share,) and the bonds then cancelled. But until such settlement and cancellation, there could be no distribution. Until then they would be liable on their bonds in case of any unexpected debt arising, or for any balance exceeding *150or falling short of their shares. In contemplation of law it is not the property, (of which they are merely purchasers, as any other individuals would be,) but the money secured by the bonds, which is the subject of partition.'

In this case, there is no evidence of such final settlement, but the contrary. It plainly appears that the parties did not purchase to the exact amount of their interests. Defendant’s purchase appears to have considerably exceeded the rest. All the purchasers were liable on their bonds to make up Aaron Gillett’s share, which was unas-certained till long after the death of defendant’s wife, and if defendant gave up the bonds of the purchasers, he was liable as administrator for so much money received. The estate was not iully administered at the death of defendant’s wife, and I do not think his marital rights would attach in respect of his agreement and purchase.

My opinion is different, however, with respect to the fund in the Federal Court. By the judgement of that Court, one fourth of the fund is directed to be paid to him in right of his wife. It is agreed, as explained in *Muse*vs. *JSdgerton,*(Dudl. Eq. 179,) that if there are funds of the wife, for which the husband is suing in a Court of competent jurisdiction, an order to pay to the husband is such an appropriation that the marital rights will attach, notwithstanding the subsequent death of the wife before the actual payment.

But it is contended that the Federal Court was not a Court of competent jurisdiction; that its jurisdiction was founded solely on the circumstance that the plaintiffs in the action were citizens of another State; that when the relief claimed by the plaintiffs was refused, and the bill dismissed, there was an end of the jurisdiction, and the judgment as between the co-defendants was void. This must depend upon the character of that Court. It is the well known rule, with respect to an inferior Court, of limited jurisdiction, that the circumstances which give it jurisdiction must appear upon the face of its proceedings, and if they do not, the judgment will be void. It is an equally well known rule that the judgment of a superior Court of general jurisdiction, can never be void for want of jurisdiction. Nothing shall be intended to be out of its juris*151diction which is not shown to be so in the course of the suit. However irregular and erroneous its judgment may be, it must be respected by every other tribunal until arrested by the Court itself, or reversed for error on appeal. I refer to the opinion and the authorities quoted in *Miller*vs. Fuise, (1 Bailey’s Eq. 188.) It is certain that according to the practice of the Courts of the United States, if the circumstances which give jurisdiction do not appear on the record, and the objection be taken in the course of the suit, they will refuse to entertain jurisdiction ; or if the Circuit Courts should do so, the judgment may be reversed for error. But it has never been held, I believe, that with respect to other tribunals, the judgment would be void for such defect. It is observed by Chief Justice Marshall, in *Kempe’s Lessee*vs. Kennedy, 5 Cranch, 185, that all Courts from which an appeal lies, are inferior in one sense, but this is not the technical sense. “They apply to Courts of a special and limited jurisdiction, which are erected on such principles, that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction. The Courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments in such cases may certainly be reversed, but this Court is not prepared to say that they are absolute nullities, which may be totally disregarded.”

My own opinion, founded on very mature reflection, and examination of authorities, is, that if any question of civil right may be directly or indirectly brought before a Court, this constitutes it a superior Court, of general jurisdiction. The distinction is pointed out in *Slanyan*vs. Davis, 6 Mod. 223: “Whatever is essentially necessary to maintain an action, if the action be brought in an inferior Court, that must be averred to be within the jurisdiction, or otherwise they have no jurisdiction.”

“In Courts of general jurisdiction, as the Court of Exchequer or King’s Bench, though universal as to the right, yet, because circumscribed or limited as to persons, such averment must be made; though where the jurisdiction is general, such allegation is not traversable, as it is in a circumscribed jurisdiction.” The Court of King’s bench was *152supposed to have original jurisdiction only in criminal cases, and cases of tort, besides the superintendence of inferior jurisdictions; but it had jurisdiction of civil cases incidentally, when the defendant was in custody of the Marshall. The Court of Exchequer had jurisdiction only in case of revenue; but it had jurisdiction of all civil cases incidentally, when the plaintiff was the King’s debtor. The allegation of these circumstances is not allowed to be traversed in those Courts, though it has never been surmised that their judgments would be void if omitted. The difference seems to be that the allegation of the circumstances which give jurisdiction may be traversed in the Courts of the United States.

The Courts of Common Pleas and Chancery have only jurisdiction of civil actions, yet they are Superior Courts of general jurisdiction. The latter Court, indeed, has jurisdiction only incidentally of any matter triable in a Court of law. So it is with respect to the Courts of the United States. *Their jurisdiction is not limited with respect to the matter of the civd action which shall be brought before*them, *when the parties, plaintiff and*defendant, *are citizens of different States, but only as to persons.*

It appears also that a limitation in l’espect of locality, does not render a Court inferior, if there be no other limitation. The Courts of the Counties Palatine in England, have jurisdiction of causes arising only within their territorial limits. Yet in *Peacock*vs. *Bell &*Kendall, *1*Saund. 73, which was a case of error to the Court of King’s Bench, from the Court of the *County*Palatine of Durham, on the ground that the proceedings in the Court below did not show the cause of action tó have arisen within the jurisdiction, it was held that this was a Superior Court, and that it was not necessary that the ground of jurisdiction should appear. The Court said that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so. “And though the Court of the County Palatine is inferior to this Court of King’s bench, yet that does not prove it to be an inferior Court, in the sense that it ought to certify every thing precisely, for the Court of Common Bench is inferi- or to this Court.” &c. The reason why these Courts *153were regarded as superior, may be found in 1 Black. Com. 118 — that within their respective counties, the Duke of Lancaster and the Bishop of Durham had *jura*Regalia, and consequently that their Courts had jurisdiction of all pleas whatsoever.

Nor do I think the judgment of the Federal Court can be regarded as void, because the bill was ordered to be dismissed. If partial relief should be given, and the bill ordered to be dismissed, construing the whole decree together, I must take it to mean, that it is dismissed, unless in so far as relief is given. There is no- doubt, as stated by Lord Redesdale and Lord Eldon in *Chamly vs. Lord Dwnsany and others, 2*8’ch. and Lef. 709, 718, as the familiar practice, that a decree may be made between co-defendants, upon the proofs and pleadings in the cause. Nor do I perceive any reason why such decree may not be made, though the bill may be dismissed with respect to the relief claimed by the plaintiff. At all events, for reasons already given, however erroneous or irregular the judgment of the Court may be, (and I confess it appeared unusual and peculiar; the Court was not called upon to make distribution ; and though no one is disposed to call in question the validity of the sale, it might have returned the fund arising from it to the Executor or Administrator, to be administered in due course,) yet I must respect it while it stands unreversed.

The defendant’s first exception was abandoned.

The defendant’s second exception makes the question, whether a certain note, executed by Elijah Gillett to James Higginbottom, and an account which Higginbottom had against Elijah Gillett’s estate, are barred by the statute of limitations. The note was given for $1,637 *22,*on the first day of January, 1818. The account was for $1,116 47, for which Wm. S. Gillet gave his note, signing himself “ Executor E. Gillett.” In the account which was ordered to be taken in the Federal Court between the executor and legatees of Elijah Gillett, these demands were brought forward. The Clerk reported in favor of the notes, but against the account; on the ground that the account was extinguished by taking the note of the Executor, and it became his personal debt; and as the entire, *154estate of Wm. S. Gillett was not sufficient to satisfy the judgment of the complainants, there were no assets out of which it could be paid. The Clerk reported, as was admitted in argument, that the notes and account were admitted by the Executor on the 17th February, 1825. Higgin-bottom excepted to the report, on the ground that his account was not allowed; but the exception was overruled, and tlie report, in this respect, confirmed.

I suppose that this cannot be regarded as a matter adjudicated. The bill in the Federal Court was finally ‘dismissed, and the Circuit decree only affirmed as respects the distribution of the fund in Court. I certainly should not concur in the opinion of that Court, that the taking of the note of the Executor was an extinguishment of the demand against the estate of Elijah Gillett. The well known rule is, that the taking of a note is not the extin-guishment of precedent demands; unless it turns out to be good and produces satisfaction ; or unless it be expressly agreed to be taken in satisfaciion, of which there is not the slightest evidence in the present instance. Then Hig-ginbottom, being a creditor of the estate of Elijah Gillett, is entitled to be satisfied out of the assets of that estate, in preference to the devisees, who are merely volunteers, unless he is barred by the statute.

From the admission in 1825, till the filing of the Bill in the Federal Court, (4th April, 1827,) little more than two years had elapsed. Then, though there is something of novelty in the question which arises, I think the statute cannot be held to run during the pendency of that suit. There can be no question after defendant’s appointment as Administrator *de bonis non*in 1829. If his demands were not barred then, they are considered as being paid upon his appointment, and he, or his representative, has a right to retain the amount in accounting for his administration. Then he was called into the Federal Court, and compelled to become the actor for the purpose of establishing his demands. He was under a disability. The court assumed jurisdiction, and, no doubt, would have restrained him if he had attempted to sue at law.- Indeed, at the time of his appointment in 1829, he had, so far as respects the note, a judgment in his favor, which, according to the views I *155have taken, was a valid one, and most have been respected by every other tribunal up to the final dismissal of the Bill in 1835; and with respect to the account, his exception was still pending. I cannot think that the statute can be held to apply under such circumstances. The exception is overruled.

The third exception of the defendant arises under the following circumstances: — At the sale made by the Administrator *de bonis non,*on the 23d January, 1832, James, Higginbottom became the purchaser of slaves to the amount of $2,337 75. He gave his bond for the amount, and on the same day executed a mortgage of the slaves, conditioned to be void on the payment of $2,337 75. The mortgage makes no reference to the bond. On the production of the bond, it was found to have been altered, so as to be conditioned for double the amount that was actually intended to be secured. The Commissioner, deciding correctly that the bond was void for the alteration, refused to charge the representative of Higginbottom with the amount actually due.

But I am of opinion that the alteration of the bond does not affect the mortgage, and that it must be taken as evidence of the debt. If the mortgage alone had been taken, there can be no doubt but that it would have constituted a specialty debt. At law, it is regarded as a conveyance of the property, in equity, as evidence of the debt intended to be secured by it. I think it has been decided that in a suit on a bond, it is sufficient to produce a mortgage reciting it. The defendant is estopped by his deed to deny the existence of the bond. But here, as I have said, the mortgage has no reference to the bond, and I cannot consider that the party claiming under it, is in a worse situation than if the bond had never been taken. If he had taken a single bill, and a bond with a penalty, or a bond with, and one without, security, though there might have been an equity to restrain the enforcement of both, I do not see how the alteration of one could vitiate the other. The exception is sustained.

With respect to the fourth exception, if there is any error in the Commissioner’s decision, the data have not been furnished me, by which to correct it; the exception

*156must, therefore, be overruled. The fifth and sixth exceptions have been disposed of.

The first exception on behalf of the infant children of James Higginbottom, has been disposed of in considering the defendant’s fifth and sixth exceptions, so far as respects the effect of the judgment in the Federal Court, and that of the sale of 1832. So far as respects their mother’s claim under the alleged marriage settlement, nothing has been considered or concluded. If she has any rights under that, she is left to pursue them as she may be advised. The second exception was abandoned.

It is ordered that the report be referred back to the Commissioner, to be reformed according to the views herein expressed.

The defendant, J. S. Powrell, appealed from so much of the Circuit decree in this cause as overruled the several exceptions filed by the said defendant, to the Commissioner’s. Report, and moved in the Court of Appeals to reform the same accordingly.

From the foregoing decree, the complainants also appealed, and now moved to reform the same, and for a confirmation of the Commissioner’s Report, on the following grounds:

1st. Because the order of the United States Circuit Court in relation to the fund in its possession, has not the effect of vesting the portion of that fund to which Lavinia Powell was entitled, in her husband, J. S. Powell, by virtue of his marital rights, or otherwise.

2d. Because the order of the United States Circuit Court in relation to the fund in its possession, is no bar to the relief prayed for by the complainants in their bill in this case.

3d. Because Lavinia Powell in her life-time was not bound by the order of the United States Circuit Court, in relation to the fund in its possession, and the same is now subject to distribution between her next of kin.

4th. Because the defendant, J. S. Powell, having by his own voluntary and fraudulent act rendered the bond of James Higginbottom void in law, the mortgage given to *157secure that bond, cannot be set up in a Court of Equity, as evidence of the debt.

5th. Because the defendant, J. S. Powell, having voluntarily and fraudulently deprived himself of the primary and highest evidence. of the debt, cannot now resort to collateral and secondary evidence to prove the same.

6th. Because the defendant, J. S, Powell, is not entitled to recover the debt secured by the bond of James Higgin-bottom, either at law or in equity.

[1]

 See Gilbert on Evidence, 100; Peake, 111; *Ford vs.*Grey, 1 Salk. 286; *Price vs.*Copley, 1 Simmons & Stuart, 347; *Hoddle vs. Healy.*6 Mod. 181; *Daly vs.*Kelly, 4 Dow. 435.

*Caria, per*Dunkin, Ch.

This court concurs with the presiding Chancellor as to the jurisdiction of the Federal Court, and the binding efficacy of those proceedings on the parties to this litigation.

It is not doubted by the appellants, that the Federal Court had jurisdiction of the cause originally. The complainants were citizens of Georgia, the defendants of South Carolina. It was, substantially, a contest between the judgment creditors of William S. Gillett. The Bank of Georgia attempted to impeach the judgment in favor of the legatees of Dr. E. Gillett, to set it aside altogether, or, that failing, to ascertain the amount really due. In order to fix the sum due by Wm. S. Gillett, as executor of his father, Dr. Gillett, as. well as to know the extent and sufficiency of his own estate, a sale became indispensable. The result of the proceedings was to establish the judgment of the legatees, and to shew also that the estate of Wm. S. Gillett was insufficient to satisfy the amount due to the legatees. The fund in the hands of the court was then ordered to be paid to the legatees in equal proportions. The court agrees with the Chancellor, and for the reasons given by him, that this judgment must be held conclusive.

But this court is also of opinion that the judgment of the Federal Court, on the claims of James Higginbottom, against the estate of Dr. Gillett, is equally conclusive. The indebtedness of Dr. Gillett’s estate was brought in issue by the answer of the executor. The Clerk, acting as Master, reported against the demand of Higginbottom on the account of $1,116 4-7, for which he had taken the executor’s note.

*158Higginbottom excepted to the report, on this ground. The Judge, in his decree, says, the exception was very clearly not tenable, “ but that it had been abandoned by the solicitor.” After this, we think it was not competent for Higginbottom’s replesentative to renew the demand, and that the Commissioner should have so determined.

Then as to the defendant’s third exception. The court has no disposition to call in question the decision in *Mills*vs. *Starr,*2d Bail. 359. If Powell had no demand at law, but on the bond, and he had lost that, by his own fault, or folly, in altering the condition, he would be entitled to no aid from the court. But we are not bound to go further. If, as is illustrated by the Chancellor, he had taken another bond, with a surety, instead of the mortgage, his alteration of the original bond would not prevent his recovery at law on that which had been taken as collateral security, and this court would not interfere but on payment of the amount really due. This paper is certainly a mortgage, or would be so regarded in this court, but it has no reference to, nor any necessary connexion with, the bond, which has been mutilated. It is an absolute bill of sale of nine ne-groes, by name, with a proviso, or condition, that if the vendors should pay to the vendee the sum of $2,337 50, on or before the 23d January, 1834, the bill of sale should be void. The condition has never been complied with.

The negroes are now, and have always been, in possession of Higginbottom’s representatives, and there is no obstacle to a recovery at law on this instrument. The defendant only asks that the condition should be performed, and to this, we think with the Chancellor, he is entitled.

The decree of the Circuit Court is reformed, in regard to the defendant’s second exception. In all other respects it is affirmed, and the appeal dismissed.

Johnson and Johnston, Chancellors, concurred.

*Bellinger,*for defendant, J. S. Powell. *Patterson,*for complainants.