Sup. Ct. FJan’y Le Roy v. Johnson, 27 U.S. (2 Pet.) 186 (1829)
Case details
Bluebook Citation
Sup. Ct. FJan’y Le Roy v. Johnson, 27 U.S. (2 Pet.) 186 (1829)
Full caption
SUPREME COURT FJan’y Le Roy, Bayard & Co., Plaintiffs in error, v. George Johnson, Defendant in error.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
1829
•186 SUPREME COURT FJan’y
*Le Roy , Bayar d & Co., Plaintiffs in error, v. Geor ge Joh nso n , Defendant in error.
Competency of witness.—Powers of partners to bind the firm.—Firm name.
In an action originally commenced against A. and B., as partners, upon an alleged engagement by the firm, and where A., who was not found or served with process, was offered as a witness in favor of B., having been released by B., the court said: “ It is to be premised, that the only ground upon which the objection can be rested, is the supposed interest of the witness in the event of the cause; since the suit having regularly abated as to him, by the return that he was ‘ no inhabitant,’ he was no more a party to it, than he would have been, had his name been altogether omitted in the declaration. As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favor he testified, and who offered it in evidence; since the plaintiff’s recovery against the defendant, and satisfaction from him, would be a bar to their action against the witness; and the release of A. protected him against any action which A. might bring against him for contribution or otherwise. p. 194.
It is well settled, that if a bill of exchange be drawn by one partner, in the name of the firm, or if a bill, drawn on the firm, by their usual name and style, be accepted by one of the partners, all the partnership are bound; it results necessarily from the nature of the association, and the objects for which it is constituted, that each partner should possess the power to bind the whole, when acting in the name by which the partnership is known; although the consent of the other partners to the particular contract should not be obtained, or should be withheld, p. 197.
Third persons are not bound to inquire, whether the partner with whom they are contracting if acting on the partnership account, or for his individual advantage; the interest of the partnei ‘n the joint stock of the concern, and his consequent authority to use the partnership name, raises a presumption, that the contract was made for joint account; which is sufficient to bind the firm, unless the contrary be shown; and that the person with whom the partner deals had notice, or reason to believe, that the former was acting on his separate account, p. 198. Where, in the articles of partnership, no firm name was mentioned as agreed upon, and the concern went into operation under the articles, the books being kept, and the bills and accounts relating to their transactions being made out, at their warehouse, in the name of “ Hoffman & Johnson,” it cannot be questioned, but that a name, thus assumed, recognised and publicly used, became the legitimate name and style of the firm; not less so than if it had been adopted by the articles of partnership, p. 199.
Where a bill of exchange was drawn by A., after the dissolution of his partnership with B., and the proceeds of the bill went to pay, and did pay, the partnership debts of A. & B., which A., on the dissolution of the firm, had assumed to pay; the holder of the bill, after its dishonor, can have no claim on B., in consequence of the particular appropriation of the proceeds of the' bill. p. 199.
*1 18 admitted, that if one of the partners contracted with a third person, in the name *of
J the firm, after the dissolution, but that fact not made public, or known by such third person, the law considers the contract as being made with the firm, and on their credit; but if the partner deal with another, in his individual name, and upon his sole responsibility, without even an allusion to the partnership, it was unimportant to that other, to know that the partnership was dissolved, since he was dealing, not with the firm, and upon their credit, but with the individual with whom he was acting, upon his own credit.1 p. 200.
Erro r to the Circuit Court of the district of Columbia. An action of debt upon a bill of exchange for $1250?. sterling, was instituted by the plaintiffs in error, in the circuit court for the county of Alexandria, against Jacob Hoffman and George Johnson, alleging them to be partners in trade. By the statute of Virginia, adopted as the law of the county of Alexandria, this form of action is authorized for the recovery of the sum due upon a bill p. 117of exchange, and damages for non-payment. The declaration charged the bill to have been drawn by Jacob Hoffman and George Johnson, trading as copartners, in Alexandria, under the name of Jacob Hoffman, the same being for the account of the concern ; and that the bill was purchased by the plaintiffs, who remitted it to London ; where it was presented to the drawees and was returned protested. The process was not served on Jacob Hoffman.
1
Upon the trial of the cause, it was proved, that it was generally known in Alexandria, in 1823, that the defendant and Jacob Hoffman were jointly concerned in buying and selling pork ; and by the articles of copartnership, signed by both partners, and entered into on the 10th of December 1823, it was agreed, inter alia, that the funds necessary for the purposes of the partnership were to be borrowed from the banks or otherwise, upon the notes of George Johnson, to be indorsed by Hoffman, or in such other shape, as respects the paper of the parties, as might be found suitable to the object intended. The active partner in the business was Jacob Hoffman, who, besides the business of the concern, carried on that of a sugar-refiner, a buyer, seller and salter of beef, and a tobacconist ; and at the same time, the defendant George Johnson, was engaged in the transaction of business, on his own account, as a commission-merchant and grocer.
*The cashier of the bank of Alexandria proved, that an account was opened in that bank, on the 3d of December 1823, which he «- understood, from both parties, was to comprehend the cash deposits of the joint concern, and the proceeds of notes discounted for the purpose of raising funds for the same. For some years before, Jacob Hoffman kept an account in the bank, until the opening of the new account ; upon which, the private balance due the bank was transferred to it, and no money could be drawn out of the bank upon the account, but upon the check of Hoffman drawn by him in his own name. Accounts of a similar character, in the same form, and used in the same manner and for similar purposes, were proved to have been kept, at the same period, in the Farmers’ Bank, and in the Bank of Potomac. These accounts comprehended, indiscriminately, all the deposits of cash kept by Hoffman in the banks, as well as deposits and cash of the joint concern. The same witness also proved, that before a note for $6000, made by the defendant, and indorsed by John H. Ladd & Co., was discounted by the bank, he sent the bill of exchange, which was the foundation of this action to New York, at the request of Hoffman, to be there negotiated. The bill not being sold immediately in New York, Hoffman went there ; and assisted by letters of recommendation from merchants of Baltimore, he negotiated the bill, and out of the proceeds of the same, the note for $6000 was paid at the bank of Alexandria. The proceeds of the discount of this note were used by the firm. The partnership of the defendant and Jacob Hoffman was advertised in the public papers of Alexandria, the advertisement being subscribed with the names of both persons ; during the continuance of the concern, it was generally known in Alexandria, under the style of Hoffman & Johnson ; accounts were rendered, and money was paid in that name ; and the firm was dissolved on the 10th of January 1824. By the terms of the dissolution, Mr. Hoffman was bound to pay the debts of the firm, and this bill was drawn to enable him to eomply with this contract. The defendant was called upon, early in June,
188 SUPREME COURT [Jan'y
and informed of the fate of the bills; and efforts were made, without * , *success, to procure payment out of property which had belonged J to Hoffman & Johnson, and which was in the hands of a trustee.
The questions submitted to the jury, and upon which the court were requested to charge in favor of the plaintiffs below, who were plaintiffs in error in this court, were :
1. That upon the evidence of partnership, and that the proceeds of the bill were applied to the payment of the note which had been discounted for the firm ; unless the defendant could show a notice of the dissolution of the partnership, either public or private, before the bill was sold, and that the bill was not drawn on partnership account; the plaintiffs were entitled to recover.
2. If the jury, from the evidence, should be of opinion, that the bill was drawn in reference to the business of the concern, and to meet the engagements of the same, and the proceeds of the same were so applied ; then the defendant is liable to the plaintiffs, unless he proves a dissolution of the firm, and knowledge of the same by the plaintiffs, before the bill was negotiated.
3. That if the jury believed the name of Jacob Hoffman was sometimes used in relation to the business of the concern, and that the bill was drawn in the name of Jacob Hoffman, and so negotiated for the firm, to pay its notes ; the plaintiff is entitled to recover, unless the defendant can prove that the bill was not drawn and negotiated on partnership account, or that the partnership was dissolved, and the plaintiff notified thereof, or the dissolution was advertised, before the bills were drawn and negotiated.
The court having refused these instructions, and a verdict and judgment having been obtained for the defendant, this writ of error was prosecuted.
The case was argued by Swann and Key, for the plaintiffs in error ; and by Jones, for the defendant.
For the plaintiffs, it was contended, that the bill upon which this suit was brought was drawn by Jacob Hoffman on account of himself and the defendant,*to provide for the payment of a note discounted for the concern, * ..in the name *used by them in their arrangements of finance ; and
J the proceeds of the sale of the bill having gone to pay the note, the defendant was liable to the plaintiffs for the amount of the bill and damages. It was, in fact, the bill of the firm. The evidence on the part of the plaintiff was sufficient to go to the jury, upon the principles claimed by the plaintiffs. The name of Jacob Hoffman was used as that of the firm, and if several persons act under one name, all are bound. Montagu on Partnership 32, note. While it is admitted, that the partnership was not bound for all the acts done in the name of Jacob Hoffman, here was a transaction in reference to its concerns, and it is, therefore, obligatory on all. Gow on Partnership 55, 70, 189. The language of the bill is in the plural, and thus it is manifest that it was not an individual transaction of Jacob Hoffman. It is thus drawn : “ Ninety days after sight of our first of exchange (second, third and fourth of same tenor unpaid), pay to the order, &c.” That the partnership was dissolved before the bill was drawn, is immaterial. The dissolution was secret, as it was not known to the plaintiffs ; and they must p. 119be supposed to have taken the bill upon the notoriety of the partnership. The difficulties which prevented the early sale of the bill in New York may have been removed by information obtained by the plaintiff in Alexandria, and particularly of the form in which the engagements for the money concerns of the firm were drawn.
The propositions stated by the counsel of the plaintiffs should have been submitted to the jury. The first requested the court to say whether the facts proved showed a partnership. The second, that unless notice of the dissolution was brought home to the plaintiffs, the defendants were liable. The third, that there was evidence that the parties sometimes used the name of Jacob Hoffman, and the bills were drawn to raise funds for the partnership, and therefore, the plaintiffs were entitled to charge the defendant, unless the defendant could prove they were not used for r#iqi the firm. *The counsel also cited Gow on Part. 155 ; 2 Bos. & Pul. 679.
Jones* for the defendant.—The evidence showed a special partnership, to buy and sell pork, and all the transactions of the firm were in the name of Jacob Hoffman and George Johnson. If the name of Jacob Hoffman was used at the banks, it was not so used as the name of the firm, but as the name of one individual of the same ; each giving his own name to raise funds for conducting the business. Nor was the bill taken as that of the firm ; the plaintiffs refused it, in the first instance, and took it afterwards, when assured of the respectability of the drawer, individually. The law is fully settled, that when it is claimed to make a person liable as a partner, in a firm carried on in the name of one person, it must be shown to be a partnership concern. The defendant is protected by this principle ; for although the proceeds of the bill were applied to pay the note discounted for the benefit of the firm, the payment of that note had been assumed by Jacob Hoffman, and he had a right to raise funds on his own responsibility to discharge it.
To bind a partnership, the name of the firm is essential. If it is not used, it must be presumed to be an individual transaction ; and if the proceeds of the same are brought into the concern, it is presumed it is done as an individual duty to the firm. The books show universally the difference between a manual act of purchasing goods, which may be done by one partner, to bind all; and the binding of all by writing, in which all must act, or he who acts must have authority to bind all. How far the courts have gone in considering that a separate debt, which is contracted by one of a firm, is shown by the following cases. 4 T. R. 270 ; 12 East 122 ; Gow on Part. 32 ; 1 Atk. 223 ; 1 Marsh. 249.
It is incumbent on the plaintiffs, to prove they dealt with the firm, or with a view to the liability of all the parties to it. Here, George Johnson was unknown to the plaintiffs ; Jacob Hoffman alone appeared in the transaction, and he drew the bill in his own name, on his own responsibility, to *obtain the means to carry into effect the terms of the dissolution of the partnership», The court, in refusing the instructions, therefore, *■ acted in conformity with the law, and the facts of the case.
Was hingt on , Justice, delivered the opinion of the court.—The plaintiffs instituted an action of debt, under the statute of Virginia, in the circuit
Le Roy v. Johnson
court of the district of Columbia, for the county of Alexandria, against Jacob Hoffman and the defendant, upon a bill of exchange drawn by the said Hoffmann, and dated the 3d of January 1824. The declaration charges, that the said Jacob Hoffman and George Johnson were partners in the business of buying, curing and selling pork and bacon, and carried on their said copartnership business under the name and firm of Jacob Hoffman, and that the bill of exchange on which the suit is brought, was drawn in the name of Jacob Hoffman, for and on account of the said firm, and was sold to the plaintiffs, who caused it to be presented for acceptance ; and that the same was duly protested for non-acceptance and non-payment, of which due notice was given to the defendants, the drawers. The writ being returned “ no inhabitant,” as to Hoffman, the suit abated against him.
From the evidence disclosed in a bill of exceptions taken by the plaintiffs to the opinion of the court, the case appears to be as follows : On the 10th of December 1823, Jacob Hoffman and the defendant entered into articles of copartnership, under their respective signatures, to commence and prosecute, on joint account, during that winter, the business of purchasing, salting up and smoking pork. The funds necessary to the accomplishment of the objects, intended to be borrowed from the banks, or otherwise, upon the paper of the said George Johnson, to be indorsed by Hoffman, or in such other shape, as respected the paper of the parties, as might be found most suitable to the object intended ; Johnson agreeing, in consideration of the extraordinary trouble and experience which Hoffmann would devote *1931 Purc^ase and *putting up of the pork, to pay two-thirds of the
J interest arising, or growing out of the loans which should be made for the business contemplated. It was further stipulated, that the business should be carried on so far as the parties should agree, and could command the funds ; and that the profits and loss should be equally divided between them. No name or style is agreed upon, under which the business of the concern was to be transacted ; but evidence was given, that after the parties commenced their operation under these articles, the books of the concern were kept, and the bills and accounts were made out at their warehouse, where the pork was cured and kept, in the joint names of Hoffman & Johnson, and never otherwise ; and that they continued to be so kept and made out, until the pork was sold. They were generally known in Alexandria as partners in buying, curing and salting pork, under the name and style of Hoffman & Johnson, in which they acted in relation to the business of the concern, and advertised in the newspapers. It further appears, that, besides the business of this concern, and during the same period, Hoffman carried on the business of a sugar-refiner, of a buyer, salter and seller of beef, and of a tobacconist; and the defendant, that of a grocer and commission-merchant, in the town of Alexandria.
Notwithstanding what has been stated as to the name by which this firm was known in Alexandria, and in which they did business at their warehouse, it seems, that one particular branch of business was conducted solely by and in the name of Hoffman alone. In December 1823, an account was opened in the bank of Alexandria, which, the cashier understood from both Hoffman and the defendant, was to comprehend both the cash deposits of the said concern in that bank, and the proceeds of notes therein discounted to raise money for the use of the firm. This account was opened on the third of the p. 121month just mentioned, into which a trifling balance against Hoffman upon his private account, before kept at that bank, was transfei red. This new account was so kept that no money could have been drawn out of the bank, upon that account, except upon the check *of Hoffman, in whose name alone all the checks were drawn. Hoffman had likewise long stand- L ing accounts, in his own name, in two other banks in Alexandria ; which were continued in the same name, after this concern was formed ; in which accounts all cash deposits in those banks respectively, and the proceeds of notes therein discounted, to raise cash for the use of the concern, were entered. These latter bank accounts comprehended, indiscriminately, all the deposits and cash kept by Hoffman in those banks, as well as the deposits and cash of the joint concern.
The partnership between these gentlemen, which commenced on the 10th of December 1823, was dissolved by mutual consent, on the 21st of the succeeding month ; under an agreement, by which Hoffman contracted to pay all the debts due by the firm, the defendant binding himself to give the use of his name, either as drawer or indorser, in the renewal of all notes then existing, until the bacon should be sold. On the 30th of January 1824, the bill of exchange on which this suit is brought, was drawn by Jacob Hoffman, in his own name, and as he states in his deposition, on his individual responsibility, in order to enable him'to raise the money to comply with his part of the above contract, and in particular to enable him to discharge a note for $6000, which had been made by the defendant, indorsed by John H. Ladd & Co., and Jacob Hoffman, and discounted at the bank of Alexandria. With much difficulty, and after great personal exertions by Mr. Hoffman, and with the aid of a letter from Mr. Colt, in favor of his mercantile standing, he succeeded in selling this bill to the plaintiffs, the proceeds of which he immediately applied to the discharge of the above note for $6000. In his negotiations with the plaintiffs, the name of the defendant was never mentioned.
As a part of the evidence here detailed is taken from the deposition of the before-mentioned Jacob Hoffman, which was offered by the defendant’s counsel, it will be proper, in the first place, to dispose of the objection made to the competency of this evidence. The offer to read the deposition was preceded by the exhibition of a release, executed and *delivered by the defendant, to the witness, prior to his examination. It does not L appear, that any objection was, or could be, made to the form of the release ; and the only question is, whether, in point of law, the defendant could by any release render Hoffman a competent witness.
It is to be premised, that the only ground upon which the objection can be rested, is the supposed interest of the witness in the event of the cause, since the suit having regularly abated as against Hoffman, by the return that he was no inhabitant, he was no more a party to it than he would have been, had his name been altogether omitted in the declaration.
As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favor he testified, and who offered it in evidence ; since, if the plaintiffs recovered against Johnson, and obtained satisfaction from him, that would be a bar to their action against Hoffman, and the release of Johnson protected him against any action which Johnson might bring against him for contribution or otherwise. The general rule of law, in relation to witnesses who are interested in the p. 122event of the cause, goes no further than to exclude them from giving evidence in favor of that party to whom their interest inclines them. If they stand, in point of interest, indifferent between the litigating parties, or if they testify against their interest, the reason of the rule which excludes their testimony no longer exists.
We come now to the instructions to the jury, asked for by the plaintiffs* counsel, and which the court refused to give. The first is, that if the jury believe, from the evidence, that the defendant and Jacob Hoffman entered into the articles of copartnership offered in evidence, and that an account was kept for the said concern, in the bank of Alexandria, in the name of Hoffman, in which the notes discounted for the use of the partnership, and deposits of money on partnership account, were entered to the credit, and checks drawn for the same, in the said Hoffman’s name, and that the said Hoffman drew the bills mentioned in the declaration, and sent them to New * York to be sold, for the *purpose of raising money to pay certain
J notes which had been discounted in the bank of Alexandria, on partnership account, some of them drawn by said Hoffman, and indorsed by the defendant or other persons, and others drawn by the defendant and indorsed by Hoffman or others, and that the same was sold to the plaintiffs, and the proceeds thereof applied by said Hoffman to the payment of the said notes ; then the plaintiffs are entitled to recover, unless the defendant can show a dissolution of copartnership, and notice thereof, either public, or to the plaintiffs, before’the bills were sold, or that the said bills were not drawn on partnership account, but on the individual responsibility of Hoffman. The second instruction which the court was called upon to give, is substantially the same as the first, except that it omits a circumstance much relied upon in the argument, that the bank account of the concern was kept in the name of Hoffman, upon whose checks alone the money was drawn out.
The third instruction states, that if the jury should believe from the evidence, that the defendant and Hoffman sometimes used in relation to the business of the concern, the name and style of Jacob Hoffman, as representing the firm, and that the bill in question was drawn in that name by the said Hoffman, and negotiated for the purpose of raising funds to pay notes due by the said concern ; then the plaintiffs were entitled to recover, unless the defendant could prove that the said bill was not drawn and negotiated on partnership account, but on account of the said Hoffman alone, or that the partnership was dissolved, and the plaintiffs notified thereof, or the dissolution advertised, before the bills were drawn and negotiated.
In support of this action, it has been argued by the counsel for the plaintiffs, that the bill in question was drawn in the name of the firm under which the partnership concerns of Jacob Hoffman and George Johnson were transacted ; that it was drawn on partnership account, and that the proceeds of the bills were, in fact, applied by Hoffman to the discharge of a debt due by the concern. These being the facts, it is insisted, that the court below ought *1971 t0 ^ave corQP^ed with *the prayer of the plaintiffs’ counsel, and J instructed the jury, that if they were so understood by them, the plainiffs were entitled to recover. And if this statement of the facts be correct, and the instructions asked for had been so framed as to present them fairly to the jury, this court entertains no doubt but that such instruction» should have been given.
It is well settled, that if a bill of exchange be drawn by one partner, in the name of the firm, or if a bill drawn on the firm by their usual name and style, be accepted by one of the partners, all the partners are bound. It results necessarily from the nature of the association, and the objects for which it is constituted, that each partner should possess the power to bind the whole, when acting in the name by which the partnership is known, although the consent of the other partners to the particular contract should not be obtained, or should even be withheld. Were it otherwise, the affairs of the concern could with difficulty be carried on ; and third persons could seldom, if ever, know when they might safely deal upon credit of the firm. It follows, that such third persons are not bound to inquire, much less to assure themselves; that the partner with whom they are contracting, is acting on the partnership account, or for his own individual advantage. The interest of the partner in the joint stock of the concern, and his consequent authority to use their name, raises a presumption that the contract was made for joint account, which is sufficient to bind the firm, unless the contrary be shown, and that the person with whom the partner deals, had notice, or reason to believe, that the former was acting on his separate account.
It is now to be seen, how these principles of law apply to the case under consideration. It is quite clear, that the name of this firm is nowhere designated in the articles of copartnership which have been referred to. The mode in which a particular branch of their business was to be conducted, cannot reasonably be construed to give a name to the firm. It manifestly had no allusion to that subject. The stipulation that the funds necessary for the purposes of the concern should be raised upon the paper of Johnson, to be indorsed by Hoffman, or *in such other shape as might be found most suitable to the object of the parties, no more L designated Jacob Hoffman that it did George Johnson, as the name of the copartnership. If it did, then the name would be lost or changed, as often as the parties should agree to raise funds for the concern in some other mode than the one specified. It is unnecessary to decide whether the omission to agree upon a partnership name, in the body of the instrument, was or was not supplied by the signatures of the contracting parties to it, because it was in full and uncontradicted proof, that after the concern went into operation under the articles, their books were kept, and the bills and accounts relating to their business were made out at their warehouse, in the joint names of Hoffman & Johnson, by which name the firm was generally known in Alexandria, and in which they acted in relation to the business of the concern, and advertised in the newspapers. Now, it cannot be questioned, but that a name, thus assumed, recognised and publicly used, became the legitimate name and style of the firm, not less so than if it had been adopted by the articles of copartnership.
Keeping in mind the principles of law which have been stated, and the fact, or the evidence of it, in relation to the name of this concern, it will not be difficult to decide the question, whether the instructions asked for by the plaintiffs ought or ought not to have been given. It is obvious, that the court was required by the first two of them, either to assume the fact that Jacob Hoffman and George Johnson carried on their business as partners, under the name and firm of Jacob Hoffman ; or to lay it down as law to the p. 124jury, that it is competent to one partner to bind the copartnership by a bill drawn in his individual name, even after a dissolution of the partnership, if that fact was not advertised or known to the person taking the bill; provided the object of the partner who draws and negotiates the bill be to discharge certain debts due by the concern, and the proceeds are afterwards so applied.
Now, the fact which the court was called upon to assume, was all-important to be proved, to entitle the plaintiffs to recover. It is averred in cat the declaration> and is» in point of *law, the foundation of the plain-
J tiffs’ demand against the defendant Johnson. But what right had the court to assume a fact which was not warranted by any just interpretation of the articles of copartnership, or of any other written instrument which was given in evidence, but which, if it existed at all, was to be deduced from the parol evidence, of which the jury were alone competent to judge ? The court was not called upon to predicate the conclusion of law, upon the fact that the defendant and Hoffman traded under the name and firm of Jacob Hoffman, if that fact should be so found by the jury—and unless it was so found, it is quite clear, that the bill in question, although drawn for the purpose before mentioned, and although the proceeds were so applied, did not bind the defendant, and consequently, the court was right in refusing to give these instructions in the form in which they were propounded—unless the fact was that which all the instructions assume, and which formed the basis of the plaintiffs’ argument before the court; the plaintiffs contracted in point of law, as they manifestly did in fact, with Jacob Hoffman alone, and upon his sole responsibility, and the use which Hoffman intended to make or did make of the proceeds of the bill, was quite as unimportant to them and to their cause, as it would have been had they contracted with Hoffman & Johnson, under the name of their firm.
As to the necessity of bringing home to the knowledge of the plaintiffs, in one of the modes stated in the instructions asked for, the dissolution of the copartnership, in order to prevent their recovery against Johnson ; we are all of opinion, that it did not exist, in point of law, unless, in point of fact, the bill was drawn in the name of the firm. We admit, that if one of the partners contracted in the name of his firm, with a third person, after the partnership was dissolved, but that fact not made public, or known by such third person, the law considers the contract as being made with the firm and upon their credit, and this for a reason too obvious to require explanation. But if the partner deal with another, in his individual name, and upon his sole responsibility, without even an allusion to the partnership, as the jury * , *have been well warranted in concluding the facts to be in this
J case, it was unimportant to that other, to know that the partnership was dissolved; since he was dealing, not with the firm, and upon their credit, but with the individual with whom he was contracting, and upon his credit.
It only remains to notice the single point of difference between the last and the two preceding illustrations. These, as has before been noticed, assume the fact that the partners carried on the business of the concern under the name and style of Jacob Hoffman. That places the plaintiffs’ right of recovery upon the circumstance, that the defendant and Hoffman sometimes used, in relation to the business of the concern, the name and style of Jacob Hoffman, as representing the firm, in connection with the p. 125other facts stated in the preceding instructions. But would the court have been warranted in stating to the jury, what this instruction manifestly purports, that whatever may be the name agreed upon by the partners, and in which they generally act, in relation to the business of the concern, still, if they have sometimes used, in that relation, the name and style of one of the partners, bills drawn in that name, and negotiated for the purpose stated in the instruction, would bind the other partner? We clearly think not. The circumstance relied upon in this instruction, as to what the partners sometimes did, was, no doubt, proper to be left to the jury, as evidence conducing to maintain the averment in the declaration, that Jacob Hoffman and the defendant carried on business as partners in trade under the name of Jacob Hoffman; if the court had been called upon to leave that as a fact to the jury. But it was nothing more than evidence of that fact, upon which it would have been highly improper in the court to predicate any principle of law whatever. This point, we conceive, was fully settled in the case of Townsley v. Sumrall, decided a few days ago by this court. (ante, p. 170.)
We are, upon the whole, of opinion, that the court below was right in refusing to give any of the instructions prayed for ; and that the judgment of that court ought to be affirmed, with costs.
Judgment affirmed.
*
Dav id Hunt and others, Appellants, v. Robe rt Wicklif fe , [*201 Appellee. Land-law of Kentucky.—Substituted service ofprocess. An entry was made in the land-office of Kentucky, of 1000 acres, in the name of “ John Floyd’s heirs,” without naming the persons who were the heirs; upon an objection to the validity of the entry, the court said, that substituting a legal description, which cannot be misunderstood, for the more definite description by the proper names of the persons who are the heirs, was not of such substantial importance as to vitiate the transaction, p. 208. An entry was made “ so as to join the settlements on the north-east and south sides thereof, so as not to run into the old military surveys, which are legalthe old military surveys formed together a parallelogram, and adjoined the lands intended to be described by the entry; it was objected, that the limitation on the entry, “ so as not to run into the old military surveys, which are legal,” rendered the whole entry so uncertain as to make it void. The rules which are settled in Kentucky would require, that this entry, had the restriction respecting the military surveys been omitted, should be surveyed equally on the north-east and south side of the settlement, the whole land to be included by rectangular lines; the old military survey must, therefore, be so contiguous to the settlement, as to stop one or two of those lines; a subsequent locator knows where to look for them, and the testimony in the cause informs us that he would encounter no difficulty in finding them: “We consider the last words ‘ which are legal,’ merely as an affirmance that they are so, not as leaving it doubtful; and consequently, that they make no change in the entry.” p. 209. It is well settled, both in the court of Kentucky and in this court, that a possession which will bar an ejectment, is also a bar in equity, p. 212. Each of the parties held in possession distinct parts of the land in controversy; in this state of things, it is well settled, that the party having the better right is in constructive possession of all the land, not occupied, in fact, by his adversary, p. 212. The law of Kentucky authorizes their courts of chancery to make decrees against absent defendants, on the publication of an order for two months successively, in some paper authorized to-make the publication, and on fixing it up at certain public places, prescribed by the act; this
publication is considered as a constructive service of the process; the supreme court of Kentucky has decided, that the publication must be continued for two calendar months.1 p. 214. As the plaintiffs in the circuit court claimed under a conveyance made in pursuance of a decree of a court of competent jurisdiction, the bill ought not to have been dismissed for want of parties; the circuit court ought to have given leave to make new parties, and on their failing to bring the proper parties before the court, the dismissal should have been without prejudice, p. 215.
Appeal from the Circuit Court of Kentucky ; in which court, the appellants had filed a bill against the appellee, claiming from him a conveyance * . of the le’gal title *to certain lands in the state of Kentucky, to which
J the appellee had the legal title ; but, by the appellants, it was alleged, that they had a prior equitable title, derived under certain entries made in the land-office of that state. The bill was dismissed by the circuit court, without costs, and from the decree of dismissal, an appeal was entered to this court.
The defendant, Robert Wickliffe, claimed the land under patents to John Craig for 2000 acres, dated 2d of December 1785, and to A. Fox and John Craig for 2000 acres, dated on the same day. He also asserted a possession, protected by the statute of limitations. The title under these patents interfered with the entries under which the appellants claimed ; and the appellants in the circuit court sought to obtain a conveyance of all the interference, and also other portions of the grants to Floyd, not included within the boundaries of Craig’s, and Craig and Fox’s patents.
The entries under which the heirs of John Floyd and those who hold under them claim the land, were as follows :
“ 1779, October 29 : John Floyd this day appeared and claimed a right to a settlement and pre-emption to a tract of land, lying on Four Mile creek, eight miles north-west from Boonsboro’, including a plantation, claimed by the said Floyd, called Woodstock, raising corn on the premises, 1776 ; satisfactory proof being made to the court, that said Floyd has a right to a settlement of 400 acres, including said improvement, and a pre-emption of 1000 acres adjoining, and that a certificate issue, &c.” Under this certificate for a settlement and pre-emption, the entries were made.
“ November 3d, 1779 : John Floyd enters 400 acres of land by virtue of a certificate, &c., on Four Mile creek, about eight miles north-west from Boonsboro’, including a plantation called Woodstock.
“1780, April 28 : John Floyd, assignee of James Taylor, assignee of George Muse, enters 800 acres ; as assignee of Lance, 200 acres', upon military warrants, between the lines of David Robinson and John Carter, Andrew Boyd, Thomas Barns and Jonathan Martin, on Four Mile creek.” This * entry appeared to have been located in two surveys, *and was desig-
-* nated on the plat, 245 acres, and 240 acres. The latter interfered with the land held by the appellee.
“ April 19, 1778 : John Floyd, assignee, enters 1600 acres upon a military warrant, on Boon’s creek, adjoining David Robinson’s west line, extending along said line, and westwardly for quantity.” A part of this appeared to be surveyed in a survey of 246 acres, as represented on the plat.
1
See Moore v. Houston, 3 S. & R. 169; 10 Id. 393; Gross v. Fowler, 21 Cal. 392; Snyder v. Warren, 2 Cow. 518; Parsons v. Mitchell ®. Woodrow, 37 Miss. 567. Chamberlin, 4 Wend. 512; People v. New York, (a) Green v. Liter, 8 Cranch. 229.
“May 31, 1783 : John Floyd’s heirs enter 1000 acres on a pre-emption warrant, No. 1054, joining the settlement at Woodstock on the north-east and north sides thereof, so as not to run into the old military surveys, which are legal.” These surveys all adjoined, and were patented in January 1789, to Mourning, George, John Floyd, and Jane Breckenridge, wife of Alexander Breckenridge, formerly Jane Floyd, widow of said John Floyd.
The appellants had, under a decree of the Fayette circuit court of Kentucky, obtained a conveyance from the patentee, of 694 acres, part of the land embraced in these surveys. The appellee had made no effort to establish the entries under which he claimed, relying upon his elder legal title, and an asserted possession.
Buckner, for the appellants, insisted : 1. That the entries of Floyd were valid, as supported by the testimony in the cause, a. That by the depositions of J. W. Hunt, a witness in the cause, it was proved, that they and those from who they derive title have had the possession of the land since 1800. 3. The greater part of the survey of 200 acres of the defendant made in the name of Craig and Fox, is within the claim of the appellants. 4. The bill of the complainants ought not to have been dismissed ; but if all who are interested in the claim were not before the court, leave should have been given to make new parties.
He argued, that the objects called for in the entries of Floyd, were notorious, at the time they were respectively made; and he referred to the evidence contained in the *depositions of the witnesses, to support the position. To show that the call to exclude “old military surveys L which are legal,” did not vitiate the entry, he cited the following cases : Drake v. Bamsey <6 Logan, Hardin 34, 383, 386; 2 A. K. Marsh. 395 ; Jackson v. Johnson?s Heirs, 1 Bibb 61 ; Overton & Heed n . Boberts, 4 Ibid. 156.
As to the question of possession, relied upon by the appellee; it was insisted,, that the deposition of Hunt, in relation to the possession of the appellants, was contradicted but by one witness, and was entitled to belief. There was no satisfactory evidence of any possession in the appellee. He also urged, that to enable a party to protect himself, under the statute of limitations, upon which the appellee relied, proof of a continued, uninterrupted possession for twenty years should be established, by clear and satisfactory testimony, and this had not been done. A right of entry is not taken away by possession, without claim of title ; and therefore, if the possession of the appellee existed before the date of his patents, it will not avail. The time intended by the statute never commences, until the possession is adverse.
If, however, it were conceded, that the evidence of the witness examined on the part of the appellee, proved that he took possession of any part of the land in controversy, prior to the possession of the appellants, no benefit could result to the appellee for the same, beyond the boundary of the portion of the land which the person taking possession of the land intended to adopt. The quo animo in which an entry on lands is made, will determine the extent of the possession acquired by the entry. (Jlark v. Lynws Heirs, 1 A. K. Marsh. 347. Admitting the proof of the appellee to be conclusive as to such portion of the land as is within the boundary intended, when the p. 128204 SUPREME COURT [Jan y
possession was taken ; there remained for the appellants a considerable part to which the statute of limitations could not apply.
While he freely conceded, that all who should have been made parties to the complainants’ bill were not before the circuit court, yet, as the entries under which the complainants *in the bill claimed, were valid, and
J their title had been sanctioned by the decree of the Fayette circuit court; and as it was manifest, that the appellants had the superior equity ; he contended, that this court would reverse the decision of the court below, and remand the cause, with leave to amend the bill, and make all persons parties who were required by the rules of chancery; in order for a final decision upon the real merits of the case.
C. A. Wickliffe, for the appellee, contended : 1. That the pre-emptive entry of 1000 acres of Floyd was void, upon the principle well settled by the courts of Kentucky, that every call of an entry which might give it shape or locality, and which are, in the adjudications of those courts, denominated “locative calls,” must be proved ; and the objects called for should have been notorious at the date of the entry. 2. The entry is bad on its face. It is vague in the call to adjoin the settlement on the north and south sides, “ so as not to run into the old military surveys which are legal.” 3. The location, or pre-emptive entry, is void, upon the ground that the land-law of Virginia and Kentucky never did authorize an entry to be made in any other way than by the proper names of the person locating.
He argued, that the requisition “ to adjoin the settlement on the north and south sides, so as not to run into the old military surveys,” was indefinite. The land might adjoin on all sides with equal propriety. A subsequent locator would in vain look for the precise position of such lands. The injunction “ so as not to run into old surveys,” would give no information of any certain character. What surveys- were they ? How could any one know, without the particular survey had been stated, which of the old surveys were good, and which were bad ? and yet this knowledge was essential. He cited in support of his arguments on these points, 1 Bibb 10 ; Williams v. Taylor, Ibid. 41-6 ; Ibid. 29, 30, 35, 127, 135, 136, 138 ; Cox v. Smith, Hardin 411 ; Crubbs n . Rice, 2 Bibb 110 ; Walker n . Montgomery, *2061 259 ; Kincaid v. Rlythe, Ibid. 476, 479 ; * Thomas v. Bow-
J man, Ibid. 128, 132. Also 3 Ibid. 162, 543 ; 4 Ibid. 132 ; Howard n . Todd and others, 1 A. K. Marsh. 275.
He also urged, that the entry in the name of “ the heirs of John Floyd” was indefinite, and therefore void ; as those terms did not designate the persons to take, the same having been made in 1783, before the law abolishing primogeniture. The land, therefore, descended to the heirs-at-law, and it is not shown, who is such heir. The complainants in the circuit court did not show any title to the land claimed by them, derived from the persons who are alleged to have been the proprietors, as heirs of John Floyd. The appellants must not only show an equitable title out of the appellees, but they must connect themselves with it. Upon the evidence on the record, there are parties who have or had an interest in the land, as heirs, or under the heirs, of John Floyd ; and those persons were not before the court, or the propel* course pursued to authorize a decree against them in theii
•
absence. Breckenridge’s heirs were not legally called upon, and the circuit court rightfully dismissed the bill.
It was also contended, that the appellants were not entitled to relief, upon the further grounds that the patents to Craig, and to Fox and Craig, were more than thirty years old, before the commencement of the suit. That there was proved an actual adverse possession of more than twenty years before the commencement of the suit, by the appellee, and those under vzhom he claimed ; and that the evidence upon the record fully established these positions ; and the counsel to prove the same, went fully into an examination of the depositions of the witnesses.
He also said, that, tac appellee had the first legal possession, within the interference. And although that possession was by a tenant and purchaser, it extended itself to the limits of the elder title of the appellee, unless it can be shown to have been restricted by limits. Kendal et al. v. Slaughter, 1 A. K. Marsh. 376. In Miller v. Humphries, 2 Ibid. 448, it was held, that
if there was an entry of an elder patentee, on an interference, before the entry of his adversary, the elder patentee is in possession to the L extent of the claim, and the subsequent entry of the junior patentee is an ouster only to the extent of the claim of the junior grantee. Also, dreen n . Liter et al., 8 Cranch 229 ; 2 Wheat. 229.
Mars ha ll , Ch. J., delivered the opinion of the court.—This is a suit in chancery, brought by the plaintiffs in the court of the United States for the seventh circuit and district of Kentucky, to obtain a conveyance of lands, to which the defendant has a legal title, but to which the plaintiffs claim the equitable title, under prior entries which they allege to be valid. At the hearing, the bill was dismissed, witi; costs. From this decree, the plaintiffs have appealed to this court.
The plaintiffs derive their title from John Floyd, deceased. As the patent of the defendant is anterior to that under which the plaintiffs claim, their equitable title cannot be sustained, unless it be founded on prior valid entries. These entries, therefore, must be examined. In 1779, John Floyd obtained a certificate for a settlement-right of 400 acres, and a pre-emption right to 1000 acres, to adjoin his settlement. On the 3d of November 1779, he made an entry of these 400 acres, to include a plantation called Woodstock. The validity of this entry is not controverted, nor is it otherwise important, than as it may serve to establish the entry of the pre-emption warrant, so far as that entry depends upon the settlement. On the 31st of May 1783, John Floyd’s pre-emption warrant was entered in the following words : John Floyd’s heirs enter 1000 acres of land on a pre-emption warrant, No. 1054, joining the settlement at Woodstock, on the north, east and south sides thereof, so as not to run into the old military surveys, which are legal.
Two objections have been made to this entry ; the first is, that it is made in the name of the heirs of John Floyd, without naming them. That there is less precision and certainty in this *description than if the heirs were named, must be admitted, but the court is not prepared to *• say, that the entry is, on that account, a nullity. No case has been adduced, in which the courts of Kentucky have so decided; and as the description is sufficiently certain to identify the persons entitled under it, we should feel p. 130great difficulty in declaring it to be void. In considering this question, the peculiar situation of Kentucky, at the time, cannot be overlooked ; warrants had been issued for more land, perhaps, than was to be found in the country; certainly, for more than was valuable. These warrants had been most generally placed in the hands of locators, by the proprietors, who resided in the Atlantic states. The communication between the principal and agent was tedious and uncertain. The holder of the warrant might often hear of the death of its proprietor, at a critical moment ; when its immediate location was very interesting to the family of the deceased ; and when he was not informed of the names of the persons entitled to the warrant. To delay in making the entry, until this information could 0e gained, might, and probably would, be very injurious to the family of the deceased ; and no injury could result to any, from making it in the name of the heirs generally. If they were not all entitled, they would all be trustees for those who were. The entry is an incipient step towards obtaining a title. Its object is, at the same time, to appropriate the land it covers, and to give notice to others that the land is appropriated. We do not think the technical objection to substituting a legal description, which cannot be misunderstood, for the more definite description by the proper names of the persons who are heirs is of such substantial importance as to vitiate the transaction. We are confirmed in this opinion, by the fact, that the survey was made in pursuance of the entry in the name of the heirs of John Floyd-generally, and that the patent was issued on this survey. Several other entries and surveys were made for the heirs, without specifying their names, and patents issued on them all. The objection was certainly not deemed valid by the officer who was intrusted with the power of granting titles to lands. * . 8econ(i and more seitj. s objection has been taken to *the
J language of the entry. It is to join the settlement on the north, east and south sides thereof, so as not to run into the old military surveys, which are legal. The old military surveys, forming together a parallelogram, adjoined Floyd’s settlement on the north-west, making an acute angle with its northern line ; so that the portion of his pre-emption warrant which adjoined his settlement on the north, could not be extended the whole length of the northern line, without interfering with them. It is contended, that this limitation on the entry, “ so as not to run into the old military surveys, which are legal,” renders the whole so uncertain as to make it void. We do not think so. The rules which are settled in Kentucky would require that this entry, had the restriction respecting the military surveys been omitted, should be surveyed equally on the north, east and south sides of the settlement; the whole land to be included by rectangular lines. The old military surveys, therefore, must be so contiguous to the settlement as to stop one or two of these lines. A subsequent locator knew where to look for them, and the testimony in the cause informs us, that he would encounter no difficulty in finding them. The evidence is, that they were well known ; and that the lines were plainly marked, so as to be traced without difficulty.
We consider the last words of the entry, “ which are legal,” merely as an affirmance that they are so, not as leaving it doubtful; and consequently, that they make no change in the entry. Understanding them in this sense, we perceive no sufficient objection to the entry. We cannot perceive any p. 131reason, why the lines might not be stopped by an old military survey which is well known, as well as by any other well-known object. The shape and form of the land, independent of this reference, being given by the settled rules in Kentucky, the position of the old military surveys must be such as to vary that shape. A subsequent locator could find no real difficulty in fixing the form of the entry. But if this restriction be entirely discarded, and the entry be surveyed, without regard to the old military surveys, it will make very little difference in the degree of interference between *the claims of the parties, and no difference in the decree which will be L made by this court. It will, therefore, not be necessary to decide, at this time, in what manner this entry ought to be construed.
The lands held by the defendant also interfere with another entry made by Floyd. On the 29th of April 1780, John Floyd entered 1600 acres upon a military warrant, on Boon’s creek, adjoining David Robinson’s west line, extending along said line, and westwardly for quantity. David Robinson had a survey made in 1776, on a military warrant. He afterwards entered a settlement and pre-emption warrant to adjoin this military survey ; and surveyed them in September 1780. The counsel for the defendant objects to the legality of this entry, because it does not designate the tract for the west line of which it calls ; and because David Robinson’s survey had not sufficient notoriety to inform a subsequent locator on what part of Boon’s creek he was to search for it.
The first objection is certainly not well founded. Floyd’s entry was made before David Robinson’s settlement and pre-emption were surveyed, possibly, before they were entered. But were it otherwise, this settlement and pre-emption form one tract with his military survey, so as to have the same west line.
There is more weight in the second objection. The testimony to establish the notoriety of Robinson’s survey is far from being conclusive. John Bradford deposes, that he was conversant in the quarter in which these lands lie, in November 1779 ; that he had no knowledge of the military survey of David Robinson, but from the records, except from common conversation, but does not know at what time he first heard it spoken of. He knows that Robinson and Hickman have military surveys in that neighborhood, but never understood their precise situation. He believes, the McGees, at McGee’s station, knew, and could show the lands of David Robinson, but of this he is not certain. Robert Boggs deposes, that he was at the making of David Robinson’s military survey, and that he has been conversant *in _ the neighborhood, from the year 1775 to the time of giving his deposi *- tion. To the question, “ from your first knowledge of those surveys (Robinson’s and others), were they known and familiarly spoken of by the names of their proprietors, as aforesaid?” he answers, “he thinks they were, shortly after.” He says, “ he thinks the lines of Robinson’s and Martin’s surveys could have been found, by reasonable inquiry, at any time after they were made, for they were plainly marked.” He left Kentucky, and returned in the year 1779. He left it again, in the fall of 1780, and returned in 1783. He is not certain that any person was acquainted with the lines of David Robinson’s military survey, on the 29th day of April 1780, except David and William Robinson, David McGee, John Haye and Jacob Boughman. The Robinsons and Boughman lived in Virginia, McGee, at his station, about p. 132one and half or two miles from the survey. The body of the land was spoken of, and he believes, was known by many.
In estimating the weight of this testimony, it must be recollected, that the depositions were taken more than forty years after Floyd’s entry was made. Few persons who were alive and in the neighborhood at the time, now survive. A fact resting mainly in memory, which might have been established with ease in 1780, would be ascertained with difficulty in 1825. Examining the testimony under this aspect of circumstances, we think, although it may not be conclusive, it is sufficient to sustain the entry. John Bradford had no personal knowledge of Robinson’s survey, but intimates that he was acquainted with it from the records and from common conversation. His deposition is not explicit as to time. His deposition, however, appears rather to refer to a remote time. The people at that time were in stations, and the nearest, certainly one within two miles of the place, was McGee’s. He believes, but is not certain, that the McGees knew and could have shown the land. Robert Boggs was present at the survey. It was known and spoken of as Robinson’s shortly afterwards. Though he mentions only five persons who, in addition to himself, knew the lines, three of whom resided in Virginia; still, he says the body of the land was spoken of, and he believes, was known by many. * . *A military survey, made before the land-office was opened, must
J have attracted the general attention of those in the neighborhood ; and after the office was opened, must have excited general inquiry. Those surveys were established by law ; and it was, consequently, an object with locators to obtain exact information respecting them, in order to avoid them. Robinson’s survey was spoken of at McGee’s, the very place where inquiry would be made. Other witnesses, whose knowledge of that part of the country commenced five or six years afterwards, speak of Robinson’s survey as having then acquired general notoriety. There is then strong reason to believe, that a subsequent locator, having Floyd’s entry in his hands, could, with reasonable inquiry, have found the west line of Robinson’s entry.
The defendant also relies on an adversary possession in himself and those under whom he claims, for more than twenty years. His proof of this fact is sufficient; and it is well settled, both in the courts of Kentucky and in this court, that a possession which will bar an ejectment, is also a bar in equity. But in this case, the plaintiffs also have been in possession. John W. Hunt deposes, that he took possession of the tract of land in controversy, for the plaintiffs ; leased it out for a number of years, and accounted with them for the rent. He exhibited a copy of an agreement made with Isaac Johnson and Thomas Coleman, on the 12th day of August 1800, fox* three years ; and says, that other tenants succeeded them, who continued to pay him the rent for the plaintiffs, until the year 1815. The rent he received in that year was, he believes, for the year 1814. Each of the parties then has held possession of distinct parts of the land in controversy. In this state of things, it is well settled, (a) that the party having the better right is in constructive possession of all the land not occupied in fact by his adversary. If then the plaintiffs in this case have the better title, that title is barred p. 133by the possession of the defendant, so far as that possession was actual, but not further.
No question can arise in this case, under the act which makes *the possession of seven years a bar, because the plaintiffs were in actual *• possession of part of the land, until the year 1815, and this suit was instituted in April 1820. If then, the title of John Floyd is regularly vested in the plaintiffs, we perceive no sufficient obstacle to their recovering at least a part of the land in controversy.
The plaintiffs claim 694 acres of land, part of the entries which have been considered ; and charge generally in their bill, that they have regularly obtained a conveyance for the same from the heirs of the said Floyd, by metes and bounds, without specifying the persons through whom the title is derived.
The will of John Floyd, proved and admitted to record in Jefferson county, in March 1794, is among the exhibits in the cause. In that will, he devised his tract of land called Woodstock (which includes the land in controversy) to his daughter Mourning Floyd, and to his son George Floyd. Patents issued on the entries and surveys for the lands in dispute, to Mourning Floyd, John Floyd, George Floyd and Jane Floyd, widow of the said John Floyd, as tenants in common.
It appears from another exhibit in the cause, that in the year 1815, the plaintiffs, with others, filed theii’ bill in the circuit court of Fayette county, in the state of Kentucky, sitting in chancery, against the heirs and devisees of Thomas Turpin and of John Floyd, deceased, praying for a conveyance of 699 acres of land, part of the Woodstock tract. The bill states, that in January 1798, Thomas Turpin sold to John W. Hunt and Abijah Hunt, 699 acres of land, part of John Floyd’s survey, called and known by the name of Woodstock tract; and on the same day, executed his bond to them, in the penalty of $4000, with a condition for the conveyance thereof, on or before the first day of March thereafter. The said Abijah Hunt and Thomas Turpin both departed this life, no conveyance of the land being made. Abijah Hunt, by his last will, devised his interest in the land to the plaintiffs, and the legal estate of Thomas Turpin descended to his heirs. The bill further states, that John Floyd devised his tract of *land called Woodstock, consisting of 4000 acres, of which the land sold by *- Thomas Turpin was part, to his daughter Mourning Floyd, since intermarried with John Stewart, and his son George Floyd, to be equally divided between them ; that the said Stewart and wife did execute a deed for the said 699 acres of land to Thomas Turpin, in his lifetime ; but they are informed, that the same was burned in the office of the county court of Fayette, when the same was destroyed by fire.
A subpoena issued on this bill, which was not executed on several of the defendants, among whom included John Stewart and Mourning his wife, they being no inhabitants of the country. In February 1815, the court ordered, that unless the non-resident defendants shall appear and answer, on or before the first day of the next June term, the bill should be taken for confessed against them ; and that a copy of the order be inserted in some authorized newspaper of the commonwealth, for eight weeks in succession, agreeably to law. It appearing that this order was published, and that process was served on the resident defendants, the court, in June term 1816, p. 134decreed that the bill should be taken for confessed, and that a commissioner appointed by the court should convey the title of the defendants to the plaintiffs. The plaintiffs in this suit claim title to the lands in controversy under the conveyance executed in pursuance of this decree. The J defendant insists, that no title passes by it, because Floyd’s heirs were not parties to the suit.
The laws of Kentucky authorize their courts in chancery to make decrees against absent defendants, on the publication of an order, such as was made in this cause by the circuit court of Fayette county for two months successively, in some paper authorized to make the publication, and on fixing it up at certain public places prescribed by the act. This publication is considered as a constructive service of the process. The court of Fayette county obviously supposed a publication for eight weeks to be a compliance with this law ; but we understand that the supreme court of the state .. has determined otherwise. That tribunal has decided, *that the J publication must be continued for two calendar months.1 Under this construction of the act, the heirs of John Floyd were never before the court, and the decree was made against persons who were not parties to the suit; it cannot affect them, (a) The court, therefore, has no evidence that the legal or equitable right of Floyd’s devisees has been acquired by the plaintiffs. They cannot be allowed to assert the equity of those devisees, against the defendant, without making them parties to the suit.
But as the plaintiffs claimed under a conveyance made in pursuance of a decree of a court of competent jurisdiction ; we do not think their bill j ought to have been dismissed. The circuit court ought to have given leave to make new parties ; and on their failing to bring the proper parties before the court, the dismissal should be without prejudice. The decree of the circuit court is reversed, and the cause remanded ; with directions that the plaintiffs have leave to amend their bill, and make new parties.
This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel: On consideration whereof, it is considered, ordered and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby reversed and annulled ; and that this cause be and the same is hereby remanded to the said circuit court, with directions that the plaintiffs have leave to amend their bill and make new parties.
(a) Pract. Reg. in Ch. 125; Cas. Ch. 48; Com. Dig., tit Chancery, Y. 8.