tent that the vessel should be employed in the slave trade, from one foreign place to another, is an offence against the second section of the law, although no slave had been transported in such vessel, or received on board of her. 3. To constitute the offence under the third section of the act, it was not necessary that there should be an actual transportation of slaves in a foreign vessel, on board of which the party indicted served. 4. The voluntary service of an American citizen on board a foreign vessel, in a voyage commenced with intent that the vessel should be employed and made use of in the transportation of slaves, from one foreign country to another, is in itself, and where no slaves have been transported in such vessel, or received on board of her, an offence under the third section of the act. The United States v. Isaac Morris, 14 Peters, 464. SPECIFIC PERFORMANCE. (Refusal of decree for.) decree for a specific performance of a contract was refused, because a definite and certain contract was not made, and because the party who claimed the performance had failed to make it definite and certain on his part, by neglecting to communicate by return of mail, conveying to him the proposition of the vendor, his acceptance of the terms offered. Carr v. Duval and another, 14 Peters, 77.

A

2. (Same.) If it be doubtful whether an agreement has been concluded, or is a mere negotiation, chancery will not decree a specific performance. Ib.

3. (Non-compliance with the strict terms of a contract.) Specific performance of a contract by T. for the sale by him of a lot of ground in the city of Cincinnati, wąs asked, by a bill filed in the circuit court for the district of Ohio, by L. The complainant in the bill had purchased the lot, and had paid according to the contract, the proportion of the purchase money payable to T. By the contract, a deed, with a general warranty, was to have been given by the vendor within three months, on which a mortgage for the balance of the purchase money was to have been executed by the purchaser. This deed was never given or offered. The purchaser went into

possession of the lot, improved it by building valuable stores upon it, and sold a part of it. A subsequent agreement was made with the vendor, as to the rate of interest to be paid on the balance of the purchase money. The purchase was made in 1814, and the interest, as agreed upon, was regularly paid until 1822, when it was withheld. In 1822, the vendor instituted an action of ejectment for the recovery of the property, and he obtained possession of the same in 1824. In 1819, the purchaser was informed that one Chambers and wife had a claim on the lot, which was deemed valid by counsel; and in 1823, a suit for the recovery of the lot was instituted by Chambers and wife against T. L. and others, which was depending until after 1829. In 1825, this bill was filed, claiming from T. a conveyance of the property under the contract of 1814, on balance of the purchase money and in

the payment of the

terest. The circuit court decreed a conveyance; and the decree was affirmed by the supreme court.

worth, 14 Peters, 173.

Taylor v. Long

5. (Where time is of the essence of the contract.) There is no doubt that time may be the essence of a contract for the sale of property. It may be made so by the express stipulations of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has, in the intermediate periods, been a material change in circumstances, affecting the rights, interests, or obligations of the parties, in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust. But, except under circumstances of this sort, or of an analogous nature, time is not treated by courts of equity as of the essence of thecontract; and relief will be given to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable

time, although he has not complied with the strict terms of the contract. But in all such cases, the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable; and to account in a reasonable manner for his delay and apparent omission of duty. Ib. SUPREME COURT OF THE UNITED STATES. (Jurisdiction of.) Under the 25th section of the judiciary act of 1789, three things are necessary to give the supreme court jurisdiction over a case brought up by writ of error or appea! : 1. The validity of a statute of the United States, or of an authority exercised under a state, must be drawn in question. It must be drawn in question on the ground that it is repugnant to the constitution, treaties and laws of the United States. The decision of the state court must be in favor of its validity. The Commonwealth Bank of Kentucky v. Griffith and another, 14 Peters, 56.

3.

2. (Writ of error to.) When the decision of a state court is

against the validity of a state staute, as contrary to the constitution of the United States, a writ of error does not lie to the supreme court on such judgment. Ib.

3. (Practice in.) By a rule of the supreme court, the practice of the English courts of chancery is the practice of the courts of equity of the United States. The State of Rhode Island v. the State of Connecticut, 14 Peters, 210.

5. (Judgment of.) The judgment of the supreme court of the United States, in a case brought by writ of error to a court of a state, must be confined to the error alleged in the decision of the state court, upon the construction of the act of congress before the state court. Lessee of Pollard's Heirs v. Kibbe, 14 Peters, 353.

SURETY. (Discharge of.) Extending the time of payment of a bond, and a mere delay in enforcing it, will not discharge a surety, unless some agreement has been made injurious to the interest of the surety. Sprigg v. The Bank of Mount Pleasant, 14 Peters, 201.

2. (Liability of.) It is a sound and well settled principle of law, that sureties are not to be made liable beyond their contract; and any agreement with the creditor which varies essentially the terms of the contract, without the assent of the surety, will discharge him from responsibility. But this principle cannot apply where the surety has by his own act exchanged his character of surety for that of principal; and then applies to a court of equity to reinstate him to his character of surety, in violation of his own express contract. Ib. TRUSTS. (To secure a debt.)

The Bank

In case of a deed trust executed to secure a debt, unless in case of some extrinsic matter of equity, a court of equity never interferes to delay or prevent a sale according to the terms of the trust; and the only right of the grantor in the deed, is the right to any surplus which may remain of the money for which the property sold. of the Metropolis v. Guttschlick, 14 Peters, 19. 2. (Affirmation of.) When a trust is created for the benefit of a third party, though without his knowledge at the time, he may affirm the trust and enforce its execution. 3. (Extinguishment of.) Where a deed of trust was executed to secure the payment of certain notes, and a judgment obtained on the notes, the judgment did not operate as an extinguishment of the right of the holders of the note to call for the execution of the trust; although the act of limitations might apply to the judgment. Ib.

Ib.

4. (Relation of.) The same relation as that of landlord and ten ant subsists between a trust, and a cestui qui trust, as it regards title to the estate. Wladen and another v. Bodley and another, 14 Peters, 156.

WRIT OF ERROR.

(To circuit court.) It is the settled doctrine of the supreme court of the United States that a writ of error does not lie from the circuit court on the refusal of a motion to quash an execution by such refusal not being a final judgment, under the twenty-second section of the judiciary act of 1789. Evans v. Gee, 14 Peters, 1.

III.-MISCELLANEOUS CASES.

In the District Court for the District of Maine, November 5th,

1840.

BONNEY VS. THE HUNTRESS.

The owners of a steamboat employed in carrying passengers and merchandize between port and port are responsible to shippers of goods as common carriers.

Common carriers must at their peril deliver goods which they carry, to the right persons, and if they make a wrong delivery they will be responsible for any loss which may be thereby occasioned.

It is the duty of the owners of goods to have them properly marked, and to present them to the carrier or his servants to have them entered in their books; and if he neglects to do it and there is a misdelivery and loss in consequence without any fault of the carrier, he must bear the loss.

But the carrier is not discharged from all responsibility as to the delivery by such neglect, but if there is a wrong delivery or a loss through any want of reasonable caution on the part of the carrier or his servants, he will be responsible.

THIS was a libel in personam against the owners of the steamboat Huntress for the loss of a box of goods shipped by the libellant at Boston to be delivered to him at Portland. The Huntress was regularly employed in running between Boston and Portland for the transportation of passengers and goods. The libellant shipped on board of her at Boston, on the 30th of June, three boxes to be carried to Portland, and at the same time he took passage in the boat himself. The boxes all arrived safe, and were landed and put into the storehouse on the wharf. Bonney, the libellant, paid the freight, had them put into the handcart and ordered them to be carried to the Elm tavern. He then went to the tavern, leaving the porter to follow him with the boxes. After he had left the wharf one of the boxes was claimed by a female passenger as part of her baggage. The mate, with one Adams a passenger, who appeared to be travelling in company with the woman who claimed the box, came on shore, and Adams pointed out the box, and they took it from the porter and carried it back on board