Lewis v. Darling. 16 H. there it is said to be dependent upon the testator. The same is the case of Dudley v. Andrews, in 8 Taunt.; and Paxson v. Potts, in 2 Green, Ch. 313, is a case in point with this case. We now proceed to the consideration of the fourth and fifth ob jections. It is denied in these points that there is any evidence to authorize a decree in favor of the plaintiff, even if her bill had proper parties. We think differently. The appellant is charged in the bill with having obtained a decree in a court in Florida, in behalf of his wife, for sixty thousand acres of land, it being the real estate of her father, and that it was worth more than one hundred thousand dollars. He is also charged with having received large sums of money of the estate of the testator, and that he has refused to pay the plaintiff's legacy. He is not charged with having received the money eo nomine as the personal estate left by the testator, but as money received for which he is accountable to the estate. The difference between the two is obvious. He answers that he had not received, as yet, of the estate of the testator, one cent of value. And when he answers concerning the real estate, he does not deny, but admits that he had obtained a decree in the State of Florida for the land of the testator. His answers are made with such reserve that they must be considered as having been meant to keep from the plaintiff the discovery of what her bill seeks to obtain. The natural and candid reply of the appellant, from his unofficial connection with the testator's estate, should have been a disclosure of the condition of the real estate of the testator — what had been done with it by himself; what contracts had been made by himself in respect to it; whether any arrangementor bargain had been made for the sale of any part [ 12 ] of it; whether any money had been received on account of it, or was to be paid to him. He should have made also a frank disclosure how the personal estate of the testator had been administered by the parties and executors of the testator, if they had administered it at all, and how and to what extent he had received, or arranged to receive it, as a part of his wife's interest in her father's estate. This admission is found in his petition for a rehearing of this cause. In that he says that he has obtained a decree in the court of Florida, in behalf of his wife, for sixty-two thousand acres of the grant of land which had been made in 1817, to Arredondo and Son, containing two hundred and eighty-nine thousand six hundred and forty-five acres and five sevenths of an acre, of which the testator owned one third that the grant had been confirmed and held to be valid by the supreme court of the United States; and that the grant had been located and surveyed under the authority of the government of the Lewis v. Darling. 16 H. United States. Now it does not matter, for the purposes of this case, (the ownerships of the testator to one third of that grant having been admitted and proved,) that the writ of partition obtained for it by the appellant in Florida is only interlocutory, in the sense that it is not final until the partition shall be made and returned to the court. The ownership of the land is determined by the decree of the supreme court of the United States, and the testator's legacies have been made by him a charge upon it. The ownership of the testator of a part of that land cannot be affected by any proceedings, finished or unfinished, in the courts of Florida. Further, there is proof in the record that the appellant has received for himself and his wife from Fernando M. Arredondo a conveyance for certain property which Betts, the testator, had conveyed to Arredondo and others in trust for the payment of sundry debts due at its date by the testator. Lewis, the appellant, obtains for his wife and for himself assignments from the creditors of the testator of their demands, and takes a reconveyance of the property. What that property is, does not appear, but whatever it may be it is liable, as well as the rest of the testator's property, for the payment of the legacy. Again, the appellant admits, and the proof is that he negotiated with the partners of the testator, for a conveyance of that portion of the Arredondo grant which was conveyed to the testator in behalf of his wife. It appears to have been made by Arredondo, but not to the extent of the testator's interest. On that account he rejected the deed tendered to him, and afterward obtained from the proper court in Florida a decree for 62,000 acres in behalf of his wife in that grant. * [ * 13 ] We shall not pursue this part of the case further. We are satisfied that the merits of the controversy were not misunderstood by the learned judge in the court below. It appears, then, from the admissions and proofs in this case, that the appellant has substantially under his control a large property of the testator, which we think from his will that he meant to charge with the payment of the plaintiff's legacy, excluding, as we have said, the devises of land to Fenwick, Wallace, and Fernando, and Joseph Arredondo. We repeat that it is a charge upon the rest of the real as well as the personal property of the testator. But he states that the real estate is in another sovereignty than that in which the plaintiff has sued, and is therefore out of the jurisdiction of this court to make any decree concerning it. It is true that the court cannot, in such a case, order the land to be sold for the payment of any decree which it may make in favor of the plaintiff. But it is not without power to act efficiently to cause the defendants to pay any such decree. Turner v. Yates. 16 H. The land may be declared to be charged with the payment of the legacy so as to compel the parties who claim the same as the property of the testator to set off or sell a part of it for such purpose. And we further say, if, in the proceedings of the court below hereafter, it shall appear that the appellant has received or made arrangements to receive any fund or money equitably belonging to the testator, sufficient to pay her the plaintiff's legacy, that a decree may be made against him for application of it to that purpose. We do not consider it necessary to say more in the case. We shall direct the judgment of the court below to be reversed, for the want of proper parties, and that the court shall allow them to be made parties, with such other amendments to be made by the plaintiff to her bill as the court may judge have not been put in issue by the bill with sufficient precision, and that a master shall be appointed to report upon the testator's estate, and to take an account thereof. HENRY F. TURNER, James F. PURVIS, and STERLING THOMAS, Plaintiffs in Error, v. JOSEPH C. Yates. 16 H. 14. Though it may be necessary to leave the meaning and effect of a commercial correspondence to a jury, when it refers to material extrinsic facts, yet the question, whether a letter of advice, which accompanied a bill, showed, on its face, a drawing against a particular consignment, was for the court. It often happens that a right may be asserted in the course of a trial upon one of two grounds, both of which cannot exist; and though it is the duty of the court to guard against surprise in this respect, yet this is a matter of practice, and of discretion, and not ground for a writ of error. It is to be presumed that an invoice accompanied a consignment of merchandise to a foreign country. A commercial correspondence, though between third persons, is often evidence of the nature of their transactions, and the relations they sustained to each other. The record must show that an exception was taken at the stage of the trial when its cause arose, but the time and manner of placing the exception on the record may be regulated by the practice of the courts below. A rule of the circuit court for Maryland, on this subject held unobjectionable. THE case is stated in the opinion of the court. Barroll and May, for the plaintiffs. Johnson, (with whom was S. T. Wallis,) contrà. 'CURTIS, J., delivered the opinion of the court. [* 21. This is a writ of error to the circuit court of the United States for the district of Maryland. The action was debt on the Turner v. Yates. 16 H. bond of the plaintiffs in error, the condition of which was as follows: Whereas the said Joseph C. Yates is about to lend and advance to William H. F. Turner the sum of $12,000, in such sums and at such times as the said William may designate and appoint; [* 22 ] which designation, and appointment, * and advances, it is hereby agreed shall be evidenced by notes drawn by the said William in favor of the said Harry F. Turner, agent, and by the latter indorsed, or by drafts drawn by the said William H. F. Turner in favor of the said Harry F. Turner, agent, on, and accepted or paid by, the said Yates, indorsed by said Harry F. And whereas the said Harry F. Turner, Sterling Thomas, and James F. Purvis, have agreed, as the consideration for the said loan, to secure the said Yates the payment of the sum of $6,000, and interest thereon, part of the said loan; and the said Harry F. Turner, with Robert Turner and Absalom Hancock, have entered into a bond similar to this, for the payment of the other $6,000 and interest. Now the condition of the above obligation is such, that if the said William H. F. Turner, at the expiration of twelve months from the date hereof, shall well and truly pay to the said Joseph C. Yates, his executors, administrators, or assigns, all such sum or sums of money as may be owing to the said Yates, by the said William H. F. Turner, evidenced as aforesaid, at the said expiration of the said twelve months, or in case the said William H. F. Turner should fail or omit to pay said sum or sums of money, at said time, if the said Sterling Thomas and James F. Purvis, or either of them, shall well and truly pay to the said Yates, his executors, administrators, or assigns, so much of said sum or sums of money as may then be owing, as shall amount to $6,000 and interest, in case so much be owing, with full legal interest thereon, or such sum or sums of money as may be owing with interest thereon, in case the same should amount to less than $6,000, then this obligation shall be null and void, otherwise to remain in full force and virtue in law. HARRY F. TURNER, [SEAL.] The defence was, that seven hundred boxes of bacon had been consigned by William Turner to Gray and Co., in London, for sale, and having been sold, the whole of its proceeds ought to be credited against the advance of $12,000, mentioned in the condition of the bond. The plaintiff did not deny that the merchandise was received by Gray and Co. for sale, and sold by them, but insisted that the property belonged to Harry, and not to William Turner, and so no Turner v. Yates. 16 H. part of its proceeds were thus to be credited; and that, if bound to credit any part of these proceeds, there was first to be deducted the amount of a draft for $5,733, drawn by Harry Turner on the plaintiff specifically against this property, which draft the plaintiff was admitted to have accepted and paid. *Upon this part of the case, the district judge who pre- [ 23 ] sided at the trial ruled: "If the jury believe that defendants executed and delivered the bond now sued upon, and that Harry F. Turner, in the transactions, after occurring, in relation to the bacon at Chattanooga, was either the principal in such transactions, or acted as agent of William H. F. Turner, then defendants are entitled only to be credited for one half of the net amount of the shipments of bacon made by them, after deducting from the proceeds of sales of such bacon all liens thereon, including in such liens the draft of $5,733 drawn as an advance on such bacon." This ruling having been excepted to, several objections to its correctness have been urged at the bar by the counsel of the plaintiffs in error. The first is, that the bond does not show the advances were actually made, and, therefore, the judge ought to have directed the jury to inquire concerning that fact. It is a sufficient answer to this objection to state what the record shows, that, in the course of the trial, the plaintiff, having put in evidence drafts corresponding with those mentioned in the bond, amounting to $12,000, the defendants admitted their genuineness, and that they were all paid at the times noted thereon. The fact that the $12,000 was advanced was not therefore in issue between the parties, and there was no error in not directing the jury to inquire concerning it. It is further objected, that in his instruction to the jury the judge assumed that the draft of $5,733 was drawn against this consignment, instead of leaving the jury to find whether it was so drawn. The draft itself and the letter of advice were in the case. The draft requested the drawee to "charge the same to account as advised.” The letter of advice states: "I have this day drawn on you at ninety days for $5,733, being ten dollars and fifty cents per box on 544 boxes singed bacon, &c." This was a part of the merchandise in controversy. It was clearly within the province of the court to interpret these written papers, and inform the jury whether they showed a drawing against this property. When a contract is to be gathered from a commercial correspondence which refers to material extraneous facts, or only shows part of a course of dealing between the parties, it is sometimes necessary to leave the meaning and effect of |