Magniac v. Thompson. 7 P. defraud creditors, performance may be enforced or voluntarily made, and the contract carried into execution at any time, either in the whole or in part, as is in the power of the party." Again: "It is the opinion of the court, that the evidence in this case brings the marriage contract within the 6th section of the law (the act of 13 Eliz.) excepting it from the operation of the 1st section; unless you shall find that it was made, not bona fide, or with notice or knowledge of a fraud in John R. Thompson in entering into it, brought home to his intended wife, and that Thompson actually entered into it with such fraudulent, covinous, and collusive intention." And, without dwelling on other passages equally expressive, it is added in the very close of the charge, "we conclude, then, with instructing you, that a settlement, made before marriage, makes the intended wife a purchaser for a valuable consideration; if agreed to be made, she is a creditor, and protected in the enjoyment of the thing settled, and entitled to the means of enforcing what is executory, if the transaction was bona fide, and without notice of fraud." That these directions are correct in point of law, cannot admit of doubt; and that they cover the whole ground asserted in the argument for the plaintiffs, seems equally undeniable. We may then dismiss any further commentary on this part of the case. The next objection is, to the charge of the court in regard to the furniture. The court were requested to charge the jury [396] *that the expenditure of $5,000 in furnishing the house was, per se, fraudulent. The court refused so to do, stating, "that furniture is part of the marriage contract, to be provided by Thompson, in a suitable manner, as he should think fit. He had a discretion which he might exercise in a reasonable manner, according to their station and associations in life, proportioned to the kind of house and extent of income; the trustee or wife could not, in law or equity, compel Thompson to furnish it extravagantly, or at useless and wanton expense; and if he should do it voluntarily, it would not be within the true spirit and meaning of the marriage articles, and might be deemed a legal fraud on creditors as to the excess. But before we can say that it is a fraud in law to expend $5,000 in furnishing a house costing $13,000, and the establishment to be supported by the income of an investment of $40,000 in productive funds, we must be satisfied that it is, at the first blush, an extravagant and unwarranted expenditure under all the circumstances in evidence, and to an extent indicating some fraudulent or other ́motive unconnected with the fair execution of the contract, of which we are not satisfied. It is difficult to perceive any error in this direction; and it was Magniac v. Thompson. 7 P. going quite as far in favor of the plaintiffs in error as the law would warrant; for the change of circumstances of the defendant made no difference in his obligations to perform the stipulations of the marriage articles. The court might well have refused to give the instruction without any explanation, for it was asking them to decide, as matter of law, what was clearly matter of fact. The argument at the bar has indeed insisted that the court misunderstood the object and request of the counsel; but there is no evidence of that on the record, and certainly it is not to be presumed. The next objection is to the charge of the court respecting the delivery of the notes to Captain Robert Stockton, in September, 1829. The court were requested to charge the jury, that the delivery of these notes to Captain Stockton was a fraud. The court directed the jury that "if it was done in order to comply, in part, with the agreement, it was not so. If it was colorable, made with the intention of covering and concealing * so much, under pretence of the [397] marriage articles, for Thompson's use, and so received by the trustee, it was legally fraudulent as to creditors; but if delivered with such intention, and not so accepted, then Captain Stockton might not only fairly apply it to the trust-fund, but was bound so to do. Though it may have been done on the eve of the judgment confessed in New Jersey, that would make no difference; it being to carry into effect the agreement of December, 1825.” We cannot perceive any error in this part of the charge. The wife became a purchaser and creditor of her husband, in virtue of the marriage articles; and if the delivery of the notes was made in part performance of these articles, bonâ fide, and without fraud, it was a discharge of a moral as well as of a legal duty. Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can make no difference that the preferred creditor is his wife. The remaining objection is, that the marriage articles are inoperative and void, not having been recorded within the time prescribed by the laws of New Jersey for the registration of conveyances. To this objection several answers may be given, each of which is equally conclusive against the plaintiffs in error. In the first place, marriage articles or settlements, as such,' are not required by the laws of New Jersey to be recorded at all, but only conveyances of real estate; and, as to conveyances of real estate, the omission to record them, avoids them only as to purchasers and creditors, leaving them in full force between the parties. This is the express provision of the statute of New Jersey of 1820,' so that, notwithstanding the non 1 See the act of 1820. Laws of New Jersey, edition of 1821, p. 747. Owings v. Kincannon. 7 P. registration, the articles were good between the parties. In the next place, as to the personal estate, covenanted on the part of the defendant to be settled on his wife, whether furniture or money, it is clear that the non-registration of the articles could produce no effect whatever. If the conveyance was free of fraud, it was as to the personal estate completely valid, even against creditors. In the next place, as to the real estate covered by the articles, whether these articles are treated as an actual conveyance, or as an executory contract, [398] it is clear that, except as to the creditors of the grantor, Mr. Stockton, they were completely valid and operative. Viewed as a conveyance, or as a contract for a conveyance, the husband could not, consistently with the avowed trusts, take any legal estate or executed use in the real estate. The grantor necessarily remained the legal owner, in order to effectuate the trusts of the settlement; and the husband could entitle himself to the benefit of the trusts provided in his favor, only in the events and upon the contingencies which are therein stated. He had no equitable interest therein capable of a present appropriation by his creditors. In every view of the circumstances, it is therefore clear that the non-registration of the articles does not touch the plaintiff's rights; and the court were correct in their instruction to the jury, "that the marriage contract is not void for want of being recorded in time." Upon the whole, it is the unanimous opinion of the court that the judgment of the circuit court ought to be affirmed, with costs. Judgment accordingly. THOMAS DEYE OWINGS and others, Appellants, v. ANDREW KINCANNON, Appellee. 7 P. 399. Where some of the defendants, who were united in interest under a decree, did not join in an appeal, nor appear to have had notice and to have refused to join, the appeal was dismissed. The record stating generally that an appeal was claimed and allowed, and the appeal bond reciting that only two out of six defendants claimed and were to prosecute the appeal, the court considered this as explaining the general entry, and the appeal was dismissed. THE case is stated in the opinion of the court. Bibb, for the motion. Loughborough, contrà. [* 401 ] * MARSHALL, C. J., delivered the opinion of the court. Owings v. Kincannon. 7 P. *This is an appeal from a decree pronounced in the court [* 402 ] of the United States for the district of Kentucky, by which Thomas Deye Owings, James W. Blakey, Ralph Phillips, Milton Stapp, John L. Head, and Charles Buck, were directed to convey and release to the complainant all their right, title, and interest in a tract of land mentioned in the decree. An appeal was allowed, and a bond executed by Lewis W. R. Phillips, Sally Head, and Nancy Head, the condition of which recites "that, whereas Lewis W. R. Phillips, Sally Head, and Nancy Head, have prayed for and have obtained an appeal from the 7th circuit court of the United States in and for the Kentucky district to the supreme court of the United States, in a certain suit in chancery wherein said Andrew Kincannon was complainant, and Thomas D. Owings, Ralph Phillips, the ancestor of the said L. W. R. Phillips, and John L. Head, the husband of said Sally Head and ancestor of Nancy Head, were defendants. "Now, if the said Lewis W. R. Phillips shall well and truly prosecute," &c. The particular statement in the bond is considered by the court as explaining the general entry granting the appeal, so as to show that from a joint decree against six defendants, only two, represented by their heirs, have appealed. A motion is now made to dismiss this appeal, because the decree being joint, all the parties ought to join in the appeal. Upon principle, it would seem reasonable that the whole cause ought to be brought before the court, and that all the parties who are united in interest ought to unite in the appeal. We have, however, found no precedent, in chancery proceedings, for our government in this case. But in the case of Williams v. The Bank of the United States, 11 Wheat. 14, which was a writ of error, sued out by one defendant to a judgment against three, the writ was dismissed; the court being of opinion that it had issued irregularly, and that all the defendants ought to have joined in it. By the Judicial Act of 1789,' decrees in chancery pronounced in a circuit court could be brought before this court only by writ of error. The appeal was given by the act of 1803.2 That act declares "that such appeals shall be subject to the same rules, [* 403 ] regulations, and restrictions as are prescribed by law in cases of writs of error.' Previous to the passage of this act, the decree under consideration could have been brought into this court only by writ of error, in 11 Stats. at Large, 73. 22 Ib. 244. Barlow v. United States. 7 P. which writ all the defendants must have joined. The language of the act which gives the appeal, appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error. We think, also, that the same principle would be applicable, from the general usage of chancery, to make one final decree binding on all the parties united in interest. The appeal must be dismissed, having been brought up irregularly. 12 P. 140; 16 P. 521. JOSEPH BARLOW, CLAIMANT OF EIGHTY-FIVE HOGSHEADS OF SUGAR, Appellant, v. THE UNITED STATES. 7 P. 404. Under the 84th section of the Collection Act of March 2, 1799, (1 Stats. at Large, 694,) a forfeiture may be incurred by entering for drawback, under a false denomination, sugars not previously imported and subjected to duty. If entered by a false denomination, the burden of proof is upon the claimant to show that it was by mistake or accident, and a mistake of law is not sufficient. Though among-sugar refiners, sugars, which have not undergone the process of claying, may be spoken of as refined sugar, yet, if this term, among buyers and sellers in this country generally, is applied only to lump and loaf sugar, the term in the acts of congress must be construed to include only those articles. THE case is stated in the opinion of the court. Morton and Ogden, for the appellant. Taney, (attorney-general,) contrà. [* 406 ] * STORY, J., delivered the opinion of the court. This is a libel of seizure instituted in the district court for the southern district of New York, which comes before this court upon an appeal from a decree of the circuit court of that district, condemning the property, namely, eighty-five hogsheads of sugar, as forfeited to the United States. The charge in the libel is, that the sugars were entered in the office of the collector of the customs for the district of New York, for the benefit of drawback or bounty upon the exportation thereof, by a false denomination, with an intent to defraud the revenue. The claimant in his claim admits that he made the entry for the benefit of the drawback on the exportation; but he denies that the entry was made by a false denomination; and he asserts that the sugars are truly refined sugars, as they are denominated in the entry. The 84th section of the Duty Collection Act of 1799, c. 128, upon which the libel is founded, provides, that if any goods, wares, or mer |