1797. it. If it is to be considered as any other kind of conveyance, it having no consideration whatever but an illegal one (that of defeating the constitution and laws of the United States in a most essential point) it is at least void as to that purpose, and, therefore, does not authorise Maxfield to come into this Court.

I, therefore, conclude without difficulty, that Maxfield has neither a legal, nor an equitable, title to authorise him to come into this Court.

The only remaining consideration is, as to the remedy, which, from the first, was the only difficulty I found.

I will venture to lay it down as an unquestionable principle, that no grievance can arise in the law, but some remedy may be applied to it. The present grievance, therefore (which, if unredressed, will, in any case like the present, enable two persons, at their pleasure, to do injustice to a third, and force this Court to exercise a jurisdiction never delegated to it) must admit of some remedy.

Only three have been suggested, in the present stage of the proceeding.

1st. The method now under consideration.

2d. A plea to the jurisdiction.

3d. An injunction in equity.

I will consider the two last first; for, if they are removed out of the way (as I think they must be) it will facilitate our consideration of the first.

As to a plea to the jurisdiction. This can be of no avail, unless not only the fact, at the proper time of pleading, be known, to the defendant, but that he has disinterested proof of it. This, in a thousand instances, would be impossible; and in no instance can be expected. To insist on this, therefore, as the only method, would leave the constitution, and the law, in almost every instance, open to certain evasion. It consequently cannot be ad mitted, that this is the only method of redress.

With regard to a bill in equity. I will not say, equity ought not to interpose a remedy in any case. But it seems most prothat a Court of law should support its own jurisdiction, on per, its own principles, and, if proof can be obtained, I conceive it is necessarily incident to every Court to take care, that its jurisdiction be not encroached upon, or in other words, that the Court be not made either voluntarily, or involuntarily (if it can prevent it) an usurper of jurisdiction not belonging to it. In this case, the aid of equity may be useful (as it has been on the present occasion) in compelling a discovery; but there, I think, its interference ought to stop, unless the power of the law Court over the action has entirely ceased; as for instance, after a judgment, in which case (but in which, perhaps, alone) equity might properly grant an injunction, to prevent a party availing himself of his own fraud.

The

The only remaining remedy suggested (or which occurs to 1797. me) in the present stage of the proceeding, is that now under consideration; and, of course, this must be adopted, if an interference by the Court in the present stage of the cause is proper.

It is, however, objected, that the Court ought not to interfere at present, but permit the case to go before the jury, who may find for the defendants, if they believe the facts suggested, and apply the law accordingly.

If this case had, indeed, gone before the jury, I should have had no difficulty in telling them, that admitting the truth of the facts as stated, the lessor of the plaintiff had, in my opinion, no title; and, if the jury had found accordingly, redress (though late) could be obtained.

But, at present, I do not think myself at liberty to submit the case to the jury, for the following reasons.

1st. The Court is the proper guardian of its own jurisdiction. It is alone responsible for it, and must, therefore, take care that it neither abandons a jurisdiction rightfully belonging to it, nor usurps that which does not.

2d. Admitting that a plea to the jurisdiction is not the only remedy, for the reasons I have given, upon complaint made of any fraud on the jurisdiction having been practised, if the complaint is supported on good grounds, it is just that an immediate inquiry should be made into it, in order that if any injury to a party has been hitherto unavoidably sustained by any such fraud, it may be put a stop to, as soon as possible. To compel a party, in such a case, to stay in Court, until a jury shall be summoned and convened, to try a general issue, would be a voluntary exercise of jurisdiction, after the Court entertained reason to doubt, at least, whether they had any.

3d. To swear a jury is an exercise of jurisdiction. With what propriety can I order that, after being fully convinced from evidence, admitted to be competent, that the Court hath no juris

diction at all?

4th. Suppose the jury in this case should find for the plaintiff, when the Court was thoroughly convinced it had no jurisdiction of the cause? Can the Court give judgment for the plaintiff in such a case? Surely not. If, therefore, a verdict to that effect, could produce no good, why should a verdict be required of them? Because this would not be an ordinary case concerning a new trial; in which case, after two or three verdicts the same way, a Court might be compelled to stop, and proceed no further. But if there were a hundred verdicts in a case, in their opinion, not within their jurisdiction, they could not give judgment without voluntarily usurping a power not belonging to them. 5th. In this case there is no occasion for a jury to r the facts, because the facts are not denied, and the Court surely will VOL. IV. 2 X

not

1797. not call a jury to decide a question of law, and a question which, as I have just observed, they could not decide finally

Maxfield's allegations in this case, are either a direct confession, or as to some points (if the expression is proper) a nil dicit. In neither case is a jury wanting. A complete denial can alone entitle a party to have facts tried by a jury. There is no denial in this case but of the merits, upon which a jury can be sworn; which certainly would be premature when facts had already been confessed sufficient to oust the jurisdiction. Had he positively denied, indeed, the allegations of the bill in equity, the jury must have been sworn; for, as a Judge, I certainly could not, in any shape, determine on an issue of fact.

But as he has not thought proper to deny them, but, in my opinion, substantially confessed every thing, to show that the Court had no jurisdiction of the cause; I consider myself bound to order these ejectments to be dismissed, and do accordingly order them to be dismissed with costs. (1)

Here one of the counsel interfered, and asked the Judge whether he would order costs in a case where he declared the Court had no jurisdiction.

The Judge answered, That that circumstance did not occur to him; he acknowledged he had committed a mistake in that part of the order. But, if it was in his power, he would order double costs. (2)

(1) Mr. William Tilghman, one of the counsel for the defendants, quoted a case in Saviry's Reports, p. 12. which Judge IREDELL thought much in point, and meant to have declared so, in delivering his opinion, but inadvertently omitted it.

See Worlay v. Harrison, Dyer, 249. 2 Inst. 215. 21 Viner, 535, 536. tit. Vacat.

(2) In the case of Bowne's Lessee v. Aurbuckle, in the Circuit Court, at October term 1806, it appeared, upon bill and answer on the equity side of the Court, that the lessor of the plaintiff' was a citizen of the state of New-York, and the defendant was a citizen of Pennsylvania; that the former was a member of the population company, who had purchased extensive tracts of land, on the north-western boundary of Pennsylvania; that the land, so purchased, was held by trustees (all citizens of Penns lvania) for the use of the company; that the trustees had conveyed to the lessor of the plaintiff his portion of the land (including the premises mentioned in the declaration) in severalty; and that the present ejectment was founded upon that conveyance.

The defendant, upon these facts, and upon the authority of Maxwell's Lessee v. Levy, and Hurst v. Hurst, moved to strike from the record this ejectment, and others in the same predicament. But the motion was over-ruled by the Court; and this distinction taken:

WASHINGTON, Justice. In the cases cited, the deeds were executed, with a collusive intention, to give a jurisdiction to the Court, which the Court could not possess without them. The objection proceeded on two grounds: 1st. On the equity of the statute provision, which declares, that a suit shall not be maintained in a federal Court, by the assignee of a promissory note, or other chose in action (with the single exception of foreign bills of exchange)

unleas

unless it could have been brought there, by the original party. And, 2d. On the 1797. manifest attempt, by a fraud, to create jurisdiction. But in the case now under consideration, the lessor of the plaintiff would have had a right, as a citizen of New-York, to apply to the equity side of the Court, to compel the trustees to convey his share of the trust estate to him: and if the trustees have only voluntarily made a conveyance, which the Court would have decreed, surely we cannot call it a fraudulent deed, or refuse to take cognizance of a suit founded upon it, between a citizen of New-York, and a citizen of Pennsylvania.

CIRCUIT COURT,

PENNSYLVANIA DISTRICT.

April Term 1800.

Present CHASE, an Associate Judge of the Supreme Court, FETERS, District Judge.

O'Harra versus Hall.

ASE. This was an action brought by the assignee of a bond, against the assignor, upon a written assignment, in general terms. On the trial, Ingersoll, for the plaintiff, offered parol testimony to show, that the defendant had expressly guaranteed the payment of the bond: W. Tilghman objected, that as the contract of the parties was in writing, no parol testimony could be admitted, on a trial at law, to vary its expressions and import. Ingersoll replied, that wherever there is an oral misrepresentation at the time of a sale, or transfer, even though the principal bargain is reduced to writing, the misrepresentation may be proved. A Court of equity would, in such case, grant relief; and even the Courts of law are now accustomed to regard actions on the case, like the present, as bills in equity. Moses v. M'Farlan. 2 Burr. 1005. 1 Dall. Rep. 428.

CHASE, Justice. You may explain, but you cannot alter, a written contract, by parol testimony. A case of explanation, implies uncertainty, ambiguity, and doubt, upon the face of the writing. But the proposition now, is a plain case of alteration: that is, an offer to prove by witnesses, that the assignor promised something, beyond the plain words and meaning of his written contract. Such evidence is inadmissible; and has been so adjudged by the Supreme Court, in Clarke v. Russel, 3 Dall. Rep. 415. As to the authority of Moses v. M'Farlan, it has always been suspected, and has lately been over-ruled, on the principle,

that