[United States v. Laub.]

ment, unless their accounts were accompanied with the oath of the claimant, or other satisfactory evidence that he had not been paid. Add to this, that no claim has been made upon the government, for payment of any demand falling under the agency of the defendant. Does not this afford reasonable ground to conclude, that he had applied all the funds placed in his hands, to the purposes for which they were intended? At all events, it was evidence conducing to prove it; and the effect and sufficiency of it, was a question for the jury.

It is not intended to apply to this case, a different rule than would be applied to any other agency for the disbursement of money, under like circumstances.

Suppose a debtor should put into the hands of an agent, a sum of money for the payment of specified demands against him, and the amount limited to such demands, and to be paid in small sums to a numerous class of creditors, scattered over various and distant parts of the country: and it should be made to appear, that he had disbursed all the money thus put into his hands, but that the vouchers for such payments had been destroyed by fire, without any fault of his, and he could not ascertain the names of the creditors to whom payment had been made; but that no claim had been presented to his principal, by any one of the creditors, to whom payment was to be made by the agent, after the lapse of three years; and all this accompanied by proof, that he had faithfully discharged the duties of a like agency for several years, and regularly accounted for his disbursements: would it not afford reasonable ground to conclude, that he had disbursed all the moneys placed in his hands by his principal, for the purposes for which he received it, and protect him against a suit for any balance?

Considering the number and character of the claims to be paid by the defendant; a lapse of nearly three years, from the burning of the treasury building to the time of trial, and no claim having been made by any one entitled to payment through the defendant's agency, is a circumstance affording presumptivė evidence that all had been paid.

Upon the whole, under all the circumstances of this case, we are of opinion, that the court did not err, in refusing to give the instructions prayed on the part of the plaintiffs; nor in giving the instructions to the jury, that if from the evidence, they should believe, that the defendant had faithfully paid over, for public purposes, and within the sphere of his official duties, all the public money which came to his hands, the plaintiffs were not entitled to recover.

VOL. XII.--B

The second bill of exceptions was abandoned on the argument; and need not be noticed.

A third bill of exceptions was taken at the trial; by which it appears, that the defendant offered to read in evidence, certain passages from a public document, mentioned in the bill of exceptions. The plaintiffs' counsel consented to its being read as the defendant's evidence. And after the same was read, the plaintiffs' counsel requested the court to instruct the jury, that the conversation of the defendant with Mr. Dickins and Mr. M'Lean, read from the executive document, was not evidence to the jury of the facts stated in such conversation; which the court refused to give.

The entire document referred to, is not set out in the bill of exceptions; and from what is stated, no conversation of the character objected to appears. But the evidence was admitted by consent. The plaintiffs were entitled to have the whole document read; and it was all in evidence before the court and jury. But the objection, on the ground that some of the facts stated, were only hearsay evidence, fails. The document, so far as it appears on the bill of exceptions, contains no such conversation. This instruction was, therefore, properly refused; and the judgment of the court below is affirmed.

LESSEE OF GABRIEL SWAYZE, AND MARY HIS WIFE, PLAINTIFFS IN ERROR V. ROBERT BURKE, D. SHERMAN, GEORGE JACKSON, AND JAMES HINSMAN, DEFENDANTS.

Ejectment. John Ormsby died in Alleghany county, Pennsylvania, in December, 1805, having à son Oliver, who administered to his estate. He had also a son who had married in Mississippi, and who died in 1795, leaving an infant daughter. Oliver Ormsby filed no inventory of the estate of his father, and never settled an account as administrator; and in 1826, he confessed a judgment in favour of the Messrs. Penns, for a part of the purchase money of a valuable real estate, which had been held by John Ormsby, in his lifetime. In the suit against him for this debt, Mr. James Ross acted as the attorney for the plaintiffs; and in 1827, the real estate was sold under an execution issued by Mr. Ross on the judgment, and was purchased by Mr. Ross for three thousand dollars; he having, before the purchase given Oliver Ormsby to understand, and having publicly declared, that he would hold the property as a security for the debt due to the Messrs. Penns; and on the payment of the debt, that he would relinquish all claim to it. In April, 1831, Oliver Ormsby paid the debt to Mr. Ross, and took a conveyance of the property. At the same time, he gave a receipt, as administrator of John Ormsby, to the sheriff, for the balance of the three thousand dollars. He claimed to hold the property, so purchased, as his own. In March, 1828, Oliver Ormsby wrote to the wife of the plaintiff in this ejectment, who was the daughter of John Ormsby, junior, stating that his father had not left more property than would pay his debts. There was evidence, that less than one-tenth of the real estate would have satisfied the judgment, for which the land was sold to Mr. Ross. Mr. Ross had no. knowledge of any fraudulent purpose of the administrator. The daughter of John Ormsby, junior, having intermarried with Gabriel Swayze, with her husband, brought an ejectment, to recover a moiety of the land which was held by Clive Ormsby, under the conveyance from Mr. Ross. The court instructed the jury, that "in matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is, therefore, within the province of the jury, to inquire whether the conduct and proceedings of Oliver Ormsby, whereby the legal title to the property in dispute, became vested in himself, for his exclusive use and benefit, were in fraud of his cotenant, Mary Swayze; and if they were, the verdict ought to be for the plaintiffs." "That the fraud should be brought to the knowledge of Mr. Ross; and that, if Mr. Ross took a valid title under the sheriff's deed, the title of his vendee would be good, under the circumstances disclosed in the evidence." By the Court:-We think that the judge erred, in charging the jury that the deed to Ormsby was valid, unless they should find that Ross participated in the fraud.

It is clear that a purchaser at sheriff's sale, cannot protect himself against a prior claim, of which he had no notice; or be held a bona fide purchaser, unless he shall have paid the money.

That fraud is cognizable in a court of law, as well as in a court of equity, is a well established principle. It has often been so ruled in this court.

As there is no court of chancery under the laws of Pennsylvania, an action of ejectment is sustained, or an equitable title, by the courts of that state. Such is not the

[Swayze and Wife v. Burke et al.]

practice in the courts of the United States; and if the plaintiffs in an ejectment, fail to show a paramount legal title in themselves, they cannot recover.

IN error to the district court of the United States for the western district of Fennsylvania.

The case, as stated, in the opinion of the court was as follows:An action was instituted in the district court of the United States for the western district of Pennsylvania, by the lessors of the plaintiffs, Gabriel Swayze and wife, citizens of the state of Mississippi; for the recovery of a tract of land in Alleghany county, in the state of Pennsylvania, to October sessions, 1833.

The plaintiffs and the defendants claimed the land under a deed from John Penn, and John Penn, junior, proprietaries of Pennsylvania; the land forming part of one of the manors reserved by the proprietaries. John Ormsby died intestate in 1791, and left a son, named Oliver, a daughter, Sidney, who intermarried with John Gregg; a son named John, who married and died in the state of Missippi, leaving a daughter Mary, an infant, at the time of his decease; and who has since intermarried with Gabriel Swayze, the plaintiff in error. In December, 1807, Oliver Ormsby administered to the estate. of his father, John Ormsby, and gave the usual administration bonds; but he filed no inventory of the estate of the intestate; nor did he, at any time, settle an account of his administration of the estate.

The estate of John Ormsby, deceased, was indebted to John Penn, and John Penn, junior, for the land purchased from them, in the sum of four hundred and sixty-seven dollars and sixty-four cents; and on the 6th of September, 1826, the administrator confessed a judgment in their favour, for the amount of the debt; upon which judgment, an execution was forthwith issued by Mr. Ross, their attorney, and the land of John Ormsby was levied on and sold; Mr. Ross being the purchaser of the same, for three thousand dollars. At the time of the purchase of the estate, Oliver Ormsby, the administrator, was absent. Mr. Ross declared, in the most public manner, that Ormsby, the administrator, or any of the family of the deceased John Ormsby, might redeem the land at any time, on the payment of the debt and interest. Before the sale, Oliver Ormsby, the administrator, was informed by Mr. Ross, that he only wanted the money due upon the judgment, and that he did not intend to buy the land to hold it. Ormsby, the administrator, was in possession of the land at

[Swayze and Wife v. Burke et al.]

the time of the sale, and continued in possession of it: and at the time of the sheriff's sale, or when the deed for the land was made to him, by the sheriff, Mr. Ross paid no money. The rents and profits of the land were continued to be received by Oliver Ormsby; and in April, 1831, he paid to James Ross, Esq. the sum of five hundred and twenty-three dollars, the amount of the judgment, and the interest due thereon, and took from him a conveyance of the land in fee simple; giving to the sheriff, at the same time, as administrator of John Ormsby, a receipt for the sum of three thousand dollars, less five hundred and twenty-three dollars, the amount of the payment to James Ross, Esq. in satisfaction of the debt due to the Messrs. Penns. The land consists of eighteen coal hill lots, and of thirty-five acres of land adjoining to them, and is now of great value. It was highly valuable at the time of the sheriff's sale. The defendants were in possession of the property as tenants of Oliver Ormsby, when the suit was commenced.

In March, 1828, in answer to an application for information as to the value of the estate of John Ormsby, by Mrs. Swayze, one of the lessors of the plaintiff, Oliver Ormsby wrote; "My father, at his death, was not possessed of more property than a sufficiency to pay his debts, having, from time to time, sold to individuals, and conveyed' to his children." Evidence was also given, conducing to prove, by a sale of two of the coal lots, the judgment could have been satisfied.

that

The case was tried at October term, 1835, and a verdict and inde ment were rendered for the defendant, uuer the charge of the district judge. The plaintiffs excepted to the opinion of the court, and prosecuted this writ of error.

On the trial of the cause, the counsel requested the district judge to charge the jury, "in matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is, therefore, within the province of the jury, to inquire whether the conduct and proceedings of Oliver Ormsby, whereby the legal title to the property in dispute became vested in himself, for his exclusive use and benefit, were in fraud of the rights of his cotenant, Mary Swayze; and if they were, the verdict ought to be for the plaintiffs." The court gave the instruction as requested, with this qualification, that the fraud should be brought to the knowledge of Mr. Ross; if he took a valid title, under the sheriff's deed, the title of his vendee would be good, under the circumstances disclosed in the evidence.