court of the United States, has been very much pressed upon us, as a binding and controlling decision, as to the conclusiveness of this divorce in Vermont. Although I have a very strong conviction that the constitution of the United States and law of congress cannot be applied to a judgment which we consider void upon the first principles of justice, so as to make it conclusive upon us, yet the very high respect I entertain for that court would make me hesitate and doubt the correctness of my own judgment, did I believe it to have been the intention of that court thus far to extend the construction of the constitution and laws of the United States. But I cannot persuade myself that was so intended. And certain I am that the case before that court required no such construction. It is true that some of the observations of the learned judge, who pronounced the opinion of the court, might tend to such a conclusion. But these observations must be taken in reference to the facts in the case, and to the particular question before the court. The case presented a question of pleading; whether nil debit or nul tiel record was the proper plea to an action of debt brought in the circuit court of the District of Columbia, upon a judgment rendered in the supreme court of this state. It was held that nul tiel record was the proper plea. It was said that if the record be conclusive between the parties, it cannot be denied but by the plea of nul tiel record; and that it was conclusive in that case cannot be doubted. "The defendant," says Mr. Justice Story, "had full notice of the suit, for he was arrested and gave bail, and it is beyond all doubt that the judgment of the supreme court of New York was conclusive upon the parties in that state, and must, therefore, be conclusive here also." That case will very plainly admit of the construction, then, that it was intended only to decide that the judgment was conclusive where the defendant was arrested, or had in some way appeared, and had an opportunity of defending the original suit. This construction is fortified by what fell from Mr. Justice Johnson, who dissented from the opinion of the court. His remarks show very clearly that he did not understand the court as deciding that they were bound to consider and carry into effect, as conclusive, judgments obtained upon attachments of property merely, when there was no process served on the defendant within the jurisdiction of the court rendering the judgment, or he made in some manner personally liable to such jurisdiction. I have thus far considered this case upon the assumption that this divorce would be valid and conclusive in the state of Vermont, and should not even then deem it so here. But I very much question whether it would be so considered in Vermont. It was a divorce obtained by fraud and false representations. In Fermor's case, 3 Co. 77, it was resolved that a fine levied by fraud was not binding, and that such fraudulent estate was no estate in judgment of law; and it was declared that all acts and deeds, judicial as well as extra judicial, if mixed with fraud, are void. This divorce was introduced by the defendant himself, upon his trial, for the purpose of showing that his former marriage was dissolved, so as to legalize his marriage with the plaintiff's daughter, and thereby exclude her from being a witness in the cause. Whenever he seeks to avail himself of any benefit from a divorce, procured by his own fraudulent conduct, although brought in collaterally, it would seem to me competent to allege this fraud, otherwise he would be permitted to derive a benefit from his own misconduct; a position altogether inadmissible. Under the Vermont law, willful desertion for three years is one of the grounds on which a divorce may be obtained. This, undoubtedly, implies fault and misconduct; a desertion in violation of duty, and of the legal obligations imposed by the marriage contract. It was under this part of the law that the defendant obtained his divorce. In his petition presented to the court for that purpose, he charges his wife with willful desertion for more than three years, and with a total neglect of duty. This allegation which was the sole ground of the divorce was false, and known to be so to the defendant. For she was then, and had been for more than five years preceding, living in a state of separation from him, under the authority and sanction of an act of the legislature of the state of Connecticut, and by which it appears that both husband and wife appeared and were heard before the legislature. The defendant must, therefore, have been fully apprized of the authority and circumstances under which his wife lived separate and apart from him, and could not have believed it a willful desertion within the sense and meaning of the Vermont law. If the validity of this divorce were to be agitated in Vermont, it might well be objected, that it was obtained on false suggestions, and in fraud of their law; and the principle which governed the decision of this court in Jackson v. Jackson, 1 Johns. 424, would apply. It is there laid down, as a general principle, that whenever an act is done in fraudem legis, it cannot be the basis of a suit in the courts of the country whose laws are attempted to be infringed. If we were bound to give to this divorce the same force and effect that it would have in Vermont, we must certainly admit all objections to be urged against it that could be alleged in that state. Suppose an action should be brought in Vermont by Mrs. Fitch for her alimony, under the Connecticut law, could the defendant avail himself of his divorce to show a dissolution of the marriage contract, so as to discharge himself from the payment? She certainly might set up this fraud against the divorce. Or, suppose a suit brought in this court for the alimony, after the date of the divorce, and the divorce set up to avoid the payment; we should certainly be bound to give force and effect to the act of the legislature of Connecticut. That act was prior, in point of time, and no want of jurisdiction could be set up, as both parties appeared before the legislature in Connecticut. The courts in Vermont cannot have the power of annulling the law of Connecticut. It would be a rather singular situation of the defendant and his first wife, to consider the divorce a mensa et thoro in Connecticut, and the divorce a vinculo matrimonii in Vermont, both in force, and binding on the parties at the same time. Upon the whole, therefore, I am fully persuaded, that we cannot consider the defendant as lawfully divorced from his former wife; and, of course, his marriage with the plaintiff's daughter was null and void. Without noticing the objections urged in arrest of judgment, and about which there is no difference in opinion on the bench, I am of opinion that the plaintiff is entitled to judgment on the bill of exceptions. Judgment for the plaintiff. See the doctrine here laid down, discussed in note to Hanover v. Turner, 7 Am. Dec. 206. COLES v. COLES. [15 JOHNSON, 159.] REALTY OF PARTNERSHIP.-The principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, do not apply to real estate. One partner can convey no more than his own interest in houses or other real estate, even where they are held for purposes of the partnership. ASSUMPSIT AGAINST CO-TENANT.-Where two tenants in common sell and convey their land, and all the money is received by one, the other can maintain an action for money had and received for his moiety against the other. ASSUMPSIT for money had and received. It was proved that Stephen Coles, plaintiff's intestate, and the defendant, Willet Coles, sold a certain tract of land for nine thousand dollars, of which seven thousand dollars was paid to the defendant and the remainder applied towards the discharge of a mortgage given for the individual benefit of the defendant. It appeared that a partnership existed between Stephen and Willet in a business relating to the land, and that the partnership was in existence until the time of the sale. A motion for a nonsuit, on the ground that this was a case of a partnership transaction and required the investigation of partnership accounts, was overruled, and verdict directed to be found for the plaintiff for one half the nine thousand dollars with interest. Motion for a new trial. T. A. Emmet, for the plaintiff. By COURT. The motion for a new trial must be denied. The testimony on the part of the plaintiff shows very satisfactorily, that the intestate was only entitled to a moiety of the land sold, and he can of course claim only one half of the consideration money. The letter of the twenty-ninth of December, 1812, might admit of a construction that the intestate was the sole owner of the land. But the other proof, and the conveyance which was given by both Stephen and Willet Coles, show beyond any reasonable doubt, that they were joint owners or tenants in common. It is to be inferred from the case that the mortgage for two thousand dollars was upon this land, though that is not very clearly stated. The defendant, at all events, admitted that this mortgage was his own private debt, and no part of it ought, of course, to be paid out of that portion of the considerationmoney due the intestate, Stephen Coles. The defendant is therefore bound to account to the plaintiff for the one half of the nine thousand dollars (the full amount of the consideration) together with the interest from the time it was received. No objection can be made to the recovery on the ground of any existing partnership between Stephen and Willet Coles. They were tenants in common, not partners, in this land. The principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, do not apply to real estate. One partner can convey no more than his own interest in houses or other real estate, even where they are held for the purposes of the partnership: Wats. Partners, 67. There may be special covenants and agreements entered into between partners relative to the use and enjoyment of real estate owned by them jointly, and the land would be considered as held subject to such covenants. But nothing of that kind appears in the present case, and in the absence of all such special covenants, the real estate owned by the partners must be considered and treated as such without any reference to the partnership. These are principles fully established by the cases of Thornton v. Dixon, 3 Bro. Ch. 199, and Balmain v. Shore, 9 Ves. jun. 500. Willet and Stephen Coles must, therefore, be be considered as tenants in common of the lands sold and conveyed by them, and there can be no doubt that where two tenants in common sell and convey their land, and all the money is received by one, the other can maintain an action for money had and received, for his moiety against the other. Motion for new trial denied. The doctrine of this case is approved in Kimbro v. Bullitt, 22 How. 260, 268. PLATT V. JOHNSON. [15 JOHNSON, 218.] WATER-COURSE-RIGHTS BY OCCUPATION.-One who erects a mill and dam upon a stream, does not, by the mere priority of occupation, unaccompanied with a length of time sufficient to presume a grant, acquire such an exclusive right in the stream as would give an action against a person who erected a mill and dam above the first mill, which was rendered thereby less profitable, by reason of the detention of the water by the second mill owner. ACTION on the case for obstructing the waters of Cincinnatus creek in their ancient course across defendant's land, whereby plaintiff's mills on the stream, lower down, were rendered less useful. It appeared that, in 1797, the plaintiff erected a sawmill and dam on the creek, being possessed of lands on both sides therecf, and in 1805 and 1806, erected a grist-mill near the other mill, the dam sufficing for both. In 1810, he built a new grist-mill below the first mills; all of which have been in use since their erection. In 1809, the proprietors of the land now occupied by the defendants, built a dam across the creek, about sixty rods above the plaintiff's dam, with a fulling-mill, and erected a carding machine near it, in 1812. The defendants took possession two years before the trial. When the defendants shut down their gates for the purpose of filling their dam, the water was detained, and in very dry seasons, plaintiff's mills |