ecutors V tors. all the treasury warrants located in the name of Skil- Skillern's Exlern with the entries and locations made thereon, which assignment was on the same day executed, but never May's Execulodged in the land-office, or the office of the surveyor of the county where the lands were situated. In consideration of this assignment, and in full of all demands by Skillern against the representatives of Robert May's estate, John May gave to Skillern a bond, dated March 6th, 1785, to convey to Skillern 1,000 acres of the land to which Robert May was entitled at his death, and which remained unsurveyed, to be chosen by Skillern before the 15th of June, 1786. *It was also agreed by another writing of the same date, that if Skillern would give up the bond for 1,000 acres, John May should convey to him 1,100 acres of other land described in the writing, and Skillern was to make his election of the one or the other before the 1st of October, 1786. This last agreement was afterwards cancelled, and a bond in lieu thereof given by John May to Skillern, dated October the 9th, 1787, to convey to the latter on or before the 1st of December, 1788, "eleven hundred acres of first rate elk-horn land, well watered, and lying within ten miles of Lexington." Skillern, notwithstanding the assignment of his military and treasury warrants to John May, afterwards obtained patents thereon for 1,050 acres, of the value of 4,416 dollars and 66 cents. There was no evidence that Skillern ever offered to convey those lands to May, or his representatives. The bond of 6th of March, 1785, and that of the 9th of October, 1787, were both fraudulently placed by Skillern in the hands of his agent, for the purpose of enforcing payment of both. The agent, supposing both bonds to be due, entered into an agreement with John May's executors, the present defendants, for the discharge of the bond of 6th of March, 1785, and the same was given up by Skillern's agent to the defendants, with a receipt thereon. But the agent finding afterwards that the bond of 6th of March, 1785, was vacated by that of the 9th of October, 1787, refused to carry that agreement into effect, but brought an action of covenant upon the condition of the lastmentioned bond, and recovered damages to the amount of 8,433 dollars and 33 cents. *138 ecutors V. tors. Skillern's Ex- John May devised his lands to his executors for the payment of his debts, and this bill was brought by SkilMay's Execu- lern in his life-time, to subject the same to the payment of the judgment recovered at law. Pending this suit in chancery, Skillern died, leaving infant heirs, and the suit was revived in the name of his executors. Sixty acres, part of the 1,050 acres, had been sold for the payment of the state tax due from Skillern, *and the two tracts of 300 and 250 acres had been sold for the direct tax due to the United States, but were redeemed by the purchaser of the 60 acres. *139 * 140 After the filing of this bill, and after the death of Skillern, John May's executors filed a cross bill against Skillern's executors, and it was agreed that both suits should be tried at the same time. The court below decreed a perpetual injunction as to 4,416 dollars and 66 cents, part of the judgment at law, the same being the value of the 1,050 acres patented in the name of Skillern, and decreed payment of the resi due out of the real estate of John May, unless it should be otherwise paid, by a day named in the decree. Both parties sued out their writ of error. H. Clay, for Skillern's executors. C. Lee, for May's executors. It was contended, in behalf of May's executors, 1st. That inasmuch as both bonds, viz. that for 1,000 acres, and that for 1,100 acres, were given for one and the same consideration, a discharge of either was, in equity, a discharge of both; and that having discharged the first bond by a new engagement, the executors of Skillern could not, in equity, claim satisfaction of either. 2dly. That Skillern having taken to his own use part of the land which he had agreed to assign to May as a consideration of the bonds, could not enforce them in equity. 3dly. That as Skillern had suffered a part of the lands to be lost, by not paying the taxes, he had thereby made himself chargeable for the lands, and had in fact received a full equivalent for the consideration of the bonds; and, therefore, there ought to have been a decree for a perpetual injunction as to the whole amount of the judgment at law; especially as the fact of fraud ecutors on the part of Skillern is expressly found by the jury. Skillern's ExThe half of 2,500 acres was all he was entitled to, if V. his conduct had been fair. But as it has been found May's Execuotherwise by a jury, a court of chancery ought not to have given its aid to enforce any part of the judgment at law. For Skillern's executors it was said, that it was not in the power of Skillern alone to put an end to the contract. That by surveying and patenting the lands, he had saved them from forfeiture for not surveying within the time limited by law. That although the lands had been sold for taxes, yet the redemption enured to the benefit of the right owner. The jury found the value of the 1,050 acres of land, but not the value of the title. The land may be worth fifteen dollars an acre, but the title may be worth nothing. The patents had issued by mistake in the name of Skillern, and that mistake was owing to May's not having filed the assignment in the proper office. Skillern's executors are ready and willing to transfer those titles to the defendants. THIS COURT gave no other opinion in this case than is expressed in the following decree. "It is the opinion of the court that G. Skillern, by acquiring to himself the legal estate to 1,050 acres of land, the equitable right to which he had transferred to John May, on the 6th of March, 1785, (and having never conveyed or offered to convey the said lands to May, or to his legal representatives,) and it appearing that at the time of the decrees rendered in these causes, certain parts of the said entries to which Skillern had thus acquired the legal title, and which constituted a part of the consideration of the bond on which the judgment at law was entered, had been lost in consequence of the neglect of Skillern to pay the taxes due thereon, the complainants below in the original suit were not entitled to the aid of a court of equity to enforce *the execution of the obligation of the 9th of October, 1787, or to obtain satisfaction of the judgment at law founded thereon. "It is therefore decreed and ordered, that the decree of the district court rendered in the original cause be reVOL. IV. R tors. *141 ecutors V. tors. Skillern's Ex-versed and annulled with costs; and this court doth remand the same to the said district court for further proMay's Execu- ceedings to be had therein, in order that an equal and just partition of the 2,500 acres of land mentioned in the said assignment of the 6th of March, 1785, be made between the legal representatives of the said George Skillern and the said John May. "And as to so much of the decree in the cross suit as enjoins 4,416 dollars and 66 cents, part of the judgment at law, this court doth affirm the same; and as to the residue of the said decree, it is decreed and ordered, that the same be reversed and annulled, with costs; and this court, proceeding to give such decree in the said cross suit as the said district court ought to have given, it is further decreed and ordered, that the judgment at common law mentioned in the said bill be perpetually enjoined." The endorsor FRENCH'S EXECUTRIX v. THE BANK OF ERROR to the circuit court of the district of Columry note for the bia, sitting at Washington. of a promisso accommoda tion of the This was an action of assumpsit upon the promissory maker, is en note of W. M. Duncanson, payable to George French titled to strict or order, and by him endorsed to the plaintiffs, for 1,400 notice. dollars, at 60 days, dated October 10th, 1798, and due er of a bill of December 9th-12th. If the draw the time of strict notice. exchange, at On the trial at law in the court below, the plaintiff in drawing has error took a bill of exceptions which stated the following a right to ex- *facts: that the banking house of the plaintiffs was situapect that his bill will be ho- ted in Georgetown, in the district of Columbia, at the noured, he is time the note became payable; in which town the deentitled to fendant's testator also resided. That Duncanson, the maker of the note, lived in the city of Washington, four miles distant from the bank of Columbia. That the last day of grace upon the note expired with the 12th of December, 1798. That the defendant's testator was very ill, and confined to his bed, from the 9th to the 14th of December, 1798, on which last-mentioned day he died; that the defendant proved his will and took out letters * 142 ecutrix V. lumbia. testamentary on the 28th of the same month. That on French's Exthe 15th of December a notary public called at the house of Duncanson, the maker of the note, to demand Bank of Copayment, but was informed that he had gone into Georgetown, whereupon the note was protested; that one Weems, an agent of the defendant, had notice of the dishonour of the note in January, 1799, and conversed with and endeavoured to make arrangements with the plaintiffs for the same. That the note was endorsed by the defendant's testator, without any valuable consideration passing from him to any person for the same, merely to accommodate Duncan-' son, the maker of the note, and to give him a credit with the plaintiffs for the amount thereof, and that the plaintiffs received the same with a knowledge of its being so drawn and endorsed; that the defendant's testator, in his life-time, and the defendant, since his death, have suffered no loss or injury from the circumstance of the note not having been demanded of the maker before the 15th of December, 1798, or of the want of notice to the defendant's testator, or to the defendant, other than as aforesaid; and that the court, at the plaintiffs' request, thereupon instructed the jury that such laches and neglect of the plaintiffs, as to a demand on the maker, and in not giving other notice than as above stated to the endorsor, does not debar and take away the plaintiffs' right to recover upon that note in this action against the defendant. The defendant below took another bill of exceptions to the refusal, of the court to instruct the jury that the neglect of the plaintiffs, to demand payment and to give *notice, as before stated, discharged the defendant's testator from all liability upon the note, if the jury should be satisfied by the evidence that Duncanson received the money from the plaintiffs, with the assent of the defendant's testator, after his endorsement, and that at the time of the drawing and endorsing of the note, it was the understanding of all parties that the money should be so paid; and that such payment and assent_were a sufficient consideration passing from French to Duncan son. The judgment below being for the plaintiffs, the defendant brought her writ of error. *143 |