[Sarchet v. The United States.]

claimed were contested by the defendants; upon the ground that iron of the description imported was not by law chargeable with that duty, and that the bond was therefore improperly taken. The judgment in the district court was against the defendants; and they removed it, by writ of error, to the circuit court for the southern district of New York, in the second circuit, where the judgment of the district court was affirmed; and the case is now brought here by appeal from the judgment of the circuit court.

The attorney general has moved to dismiss the case for want of jurisdiction in this Court; and we think the appeal cannot be sus

tained.

It has been repeatedly determined that, under the acts of congress regulating the appellate jurisdiction of this Court from the circuit courts, cases mus be brought here by writ of error, and cannot be brought here by appeal. And as this was a suit at law on a bond, it could not, under any circumstances, legally come before us on appeal; but must come up by writ of error, in order to give us jurisdiction to try it.

There is also another objection, equally fatal to this proceeding. In cases at law, removed from the district court to the circuit court, the judgment of the circuit court is final between the parties. It is otherwise in cases in equity, and of admiralty and maritime jurisdiction; and although the reason for this distinction may not be entirely obvious, yet it is our duty to conform to the provisions of the law: and this Court have repeatedly decided that, in civil cases at law, the judgment of the circuit court is final, where the case is removed by writ of error, from the district court to the circuit court. The point was fully considered and decided in the case of the United States v. Goodwin, 7 Cranch, 108; and the opinion there given has been since reaffirmed in several cases. 7 Cranch, 287; 2 Wheat. 248, 395. The question must be regarded as too well settled to be for argument: and as this Court would not have jurisdiction, in any form of proceeding, to review the judgment given in this case by the circuit court; it would be evidently improper to hear an argument on the questions decided there, or to express any opinion concerning them. The appeal is therefore dismissed.

now open

CHARLES SCOTT, BAILIFF OF WILLIAM S. MOORE, PLAINTIFF IN ERROR V. JOHN LLOYD, DEFENDANT IN ERROR.

Where the grantor of annuity by deed, has conveyed all his interest in the property charged with the annuity, and an allegation of usury in the granting of the annuity is afterwards made, he may be a witness to prove usury; if he is not a party to the suit, and has conveyed all his right and title to the property to others, his creditors, thus divesting himself of all interest arising out of the original agreement: and is released from his debts by them, and is not liable to the costs of the suit. The decision in 1 Peters' Circuit Court Reports, 301, (Willings v. Consequa,) where the court held, that a party named on the record might be released, so as to constitute him a competent witness, was cited in the argument. The court said, such a rule would hold out to parties a strong temptation to perjury; and we think it is not sustained either by principle or authority.

IN error to the circuit court of the United States for the county of Washington, in the District of Columbia.

This case was before the Court at the January term, 1830, 4 Peters, 205; and again at January term, 1835, 9 Peters, 418. It nów came up on a writ of error, prosecuted by the plaintiff in the circuit court. The questions involved in the case when it was before the Court in 1830 and 1835, and also in this case, are stated in the opinion of the Court. The competency of Jonathan Scolfield, who was examined as a witness for the defendant, was the only question in this writ of

error.

The cause was argued by Mr. Jones, and Cox for the plaintiff in error; and by Mr. Key and Mr. Swann for the defendant.

For the plaintiff in error, the following cases were cited. Starkie's Evidence, 93, 94, 292; Phillips' Ev. chap. 5, sect. 4, p. 74; 7 East, 578; 1 Maule & Selwyn, 636; 10 East, 395; 5 Barnwell & Creswell, 188.

For the defendant, were cited, Willings v. Consequa, 1 Péters' C. C. R. 301; 1 Bandolph's Rep. 235: 6 Vesey Jr. 547; 1 Term Rep. 162; 7 Cranch, 271; 1 Wheat. 160; 1 Wheat. 60; 2 Starkie's Ev. 136; 1 Mumford's Rep. 398; 3 Call's Rep. 372; 6 Wendell's Rep. 415. VOL. XII.-T

[Scott v. Lloyd.]

Mr. Justice M'LEAN delivered the opinion of the Court.

This is the third time that this case has been brought before the Court, by writ of error to the circuit court of the District of Columbia.

The first decision is reported in 4 Peters, 205; and the second in 9 Peters, 418.

The controversy arose out of a certain deed executed by Jonathan Scholfield and wife to William S. Moore, all of the town of Alexandria, in the District of Columbia. For the consideration of five thousand dollars, Scholfield and wife conveyed to Moore, his heirs and assigns, forever, one certain annuity or rent of five hundred dollars, to be issuing out of, and charged upon a lot of ground and four brick tenements, &c. The annuity to be paid in half yearly payments; and in default of such payment, from time to time, Moore, his heirs and assigns, had a right to enter, and levy by distress, &c. And should there not be sufficient property found on the premises, &c., the grantee had a right to expel the grantor, and occupy the premises. Scholfield, his heirs and assigns, were bound to keep the premises insured, and to assign to Moore the policies: and Moore, for himself, his heirs and assigns, did covenant with Scholfield, that after the expiration of five years, on the payment of the sum of five thousand dollars, and all arrears of rent, the rent charge should be released.

Scholfield and wife conveyed the above premises, the 29th October, 1816, to John Lloyd. The annuity being unpaid in 1825, Scott, as the bailiff of Moore, entered, and made distress, &c. and Lloyd replevied the property.

The principal question in this case, when it was before the Cour in 1830, arose on certain special pleas, which averred the contract to be usurious. And this Court decided that, although the instrument was not usurious upon its face; yet that the second and fourth pleas contained averments, connected with the contract, which constituted usury; and the judgment of the circuit court was reversed, and the cause remanded for further proceedings.

The case was again brought up in 1835, on certain exceptions to the ruling of the circuit court; and among others, to the competency of Jonathan Scholfield, who was sworn, and examined as a witness.

To show his interest, the following instruments of writing were read.

[Scott v. Lloyd.]

1. The original contract between him and Moore, as above stated. 2. A letter from Scholfield to Lloyd, dated 9th June, 1824, which stated that the contract which created the rent charge was usurious, and that measures would be taken to set it aside. And Moore was notified not to pay any part of the rent; and assured, if distress should be made, he should be saved harmless.

3. A deed, dated 18th November, 1825, from Scholfield, making a conditional assignment of one-fifth of the annuity to Thomas K. Beale, in which he recites and acknowledges his responsibility to Lloyd.

4. An exemplification of a record showing the discharge of Scholfield under the insolvent laws of Virginia.

To show the competency of Scholfield, the following documents were given in evidence:

1. A release from Scholfield to the plaintiff, in replevin, dated 13th June, 1831, whereby, for the consideration of five thousand dollars, he releases to Lloyd all the right, title and interest which he has or may have from the decision of the suit depending. for the annuity or rent charge; or which he has, or may have, in the property out of which it issues. He also releases Lloyd from all covenants or obligagations, express or implied, arising out of the deed of assignment.

2. A release, dated 25th April, 1828, from Scholfield to Lloyd of all his right, &c., to the suit, &c., and to all sums of money which may accrue, and from all actions, &c.

3. A release, of the same date, from Thomas K. Beale and James M. M'Crea, to Scholfield, for nine hundred and fifty dollars, part of a debt of two thousand dollars, due from him to them..

4. A release, of the same date, from Joseph Smith, for one thousand one hundred and fifty dollars, part of a debt of three thousand dollars, due to him from Scholfield.

5. An obligation of Lloyd, dated 25th April, 1828, binding himself to pay to the persons named, the several sums released, as above, to Scholfield; should he succeed in the above suit.

6. A release from Lloyd to Scholfield of five thousand dollars, debt, &c.

In giving the opinion of the Court on the competency of Scholfield as a witness, the late Chief Justice says: "Some diversity of opinion prevailed on the question, whether he could be received to invalidate a paper executed by himself; but without deciding this question, a

[Scott v. Lloyd.]

majority of the Court is of opinion, that he is interested in the event of the suit."

His letter of the 9th of June, to Lloyd, the tenant in possession, requiring him to withhold from Moore the payment of any further sum of money, on account of this rent charge, contains this declaration: "and in case distress should be made upon you for the rent, I promise to save you harmless, if you will resist payment by writ of replevy. I wish you to understand, that if you make any further payments after receiving this notice, that you make them at your own risk." This, says the Chief Justice, is an explicit and absolute undertaking, to assume all the liabilities which Lloyd might incur by suing out a writ of replevin. Mr. Scholfield, then, is responsible to Lloyd for the costs of this suit.

And the Court held, that the various releases above stated, did not release Scholfield from his obligation to pay the costs, which had accrued in the suit, should the final decision be against Lloyd; and that he was therefore an interested and incompetent witness. On this ground the judgment of the circuit court was reversed, and the cause remanded, &c.

During the late trial of the issues in the circuit court, the deposition of Jonathan Scholfield was offered in evidence by the plaintiff below, and objected to by the defendant, but the court overruled the objection; and to this opinion of the court the defendant excepted. The competency of this witness is the only question raised on the present writ of error.

To show the relation of this witness to the cause, and his interest in it, the instruments of writing used in the former trial, and which are above referred to, were given in evidence; and in addition, a release, dated 24th March, 1835, from Lloyd to Scholfield, of all liability arising under his letter of June 9th, 1824, for the payment of costs; and from all responsibility growing out of this suit, in any form or manner whatsoever.

A part of the documents referred to as used in the former trial, are not found in the record of the late trial; the clerk of the circuit court, as is alleged, having omitted to certify them. But as those documents were used in the former trial, and are found in the report of the case, in 9 Peters, and as they do not change the result to which the Court have come on the present writ of error; there can be no objection to considering them as now before us.

The question is not, whether Scholfield has not been so connected