PER'S LESSER V. of two years; when prevented too by a cause not within HUIDEKOhis controul, and against which the state was bound to protect him. If such were the case now before the court, DOUGLASS. I should be of opinion that we must resort to general principles for a decision. With regard to the performance of conditions, it is a well known rule, that obstructions interposed by the act of God, or a public enemy, shall excuse from performance, so far as the effect of such preventing cause necessarily extends. in cases of partial prevention, I should therefore be of opinion, that it would be incumbent upon the warrantee to satisfy the court that he had complied with the conditions imposed by the act, so far as he was not necessarily prevented by the public enemy. It may appear singular that a deficiency, of a single day perhaps, should produce so material an alteration in the rights or situation of the warrantee. But the legislature of Pennsylvania were fully competent to make what statutory provisions they thought proper upon the subject; and the court is no further responsible for the effect of the words which they have used to express their intent, than to endeavour to give a sensible and consistent operation to them in every case that can occur. THE UNITED STATES v. HOOE, ET AL.* Saturday, February 23. THE UNITED V. HOOE, AND ERROR to the circuit court of the district of Co- The United lumbia. States have Mason, attorney of the United States for that district, their debtor on the 17th of August, 1801, filed a bill in equity against until suit Robert T. Hooe, W. Herbert, John C. Herbert, and the notorious inbrought, or a executors, widow and heirs of Col. John Fitzgerald, late solvency or collector of the customs for the port of Alexandria, and bankruptcy obtained an injunction to prevent the sale of certain real has taken place; or, being unable to • Present, Marshall, Chief Justice.-Cushing, Paterson, Washing- pay all his ton and Johnson, Justices. Vol. III. L debts, he has STATES THE UNITED estate in Alexandria, advertised for sale by W. and J. C. Herbert, under a deed of trust made by Fitzgerald for the indemnification of Hooe. V. HOOE AND law. to indemnify The material facts appearing upon the record are, that made a volun- Fitzgerald, upon being appointed collector, executed a tary assigniment of all his bond to the United States, on the 10th of April, 1794, property or with Hooe as surety, in the penalty of 10,000 dollars, the debtor ha for the faithful performance of the duties of his office. In ving abscondApril, 1798, he was found to be greatly in arrears, and éd, concealed, or absented upon a final adjustment of his accounts, on the 15th of himself, his August, 1799, the balance against him was 57,157 dolproperty has lars. On the 16th of January, 1799, Hooe having knowbeen attached ledge that Fitzgerald was largely indebted to the United States, but believing that he had sufficient property to A mortgage discharge the debt, and Fitzgerald being desirous of borof part of his rowing money from the bank of Alexandria to meet the property inade by a collector drafts of the treasury of the United States, and for other of the reve purposes, made a deed of trust to W. and J. C. Herbert, nue to his reciting that Hooe had become surety for Fitzgerald, in surety in his the bond to the United States, and Fitzgerald proposing, official bond, when he should wish to obtain a loan of money from the him from his bank of Alexandria, to draw notes to be indorsed by responsibility - Hooe, whereby the latter might be liable and compelled as surety on to pay the same, and the former being desirous of securalso to secure ing and indemnifying Hooe from all damages, costs and him from his charges which he might at any time thereafter be subject existing and and liable to by reason of any misconduct of Fitzgerald dorsements in the discharge of his duty as collector, or for or on acfor the mort- count of any notes drawn by him for his particular use gagor at bank, and accommodation, and indorsed by Hooe, and negotiated at the bank of Alexandria. The indenture then witnessed, that for those purposes, and in consideration of the trusts and confidences therein after expressed, &c. and of one dollar, &c. Fitzgerald bargained and sold, &c. to the trustees, W. and J. C. Herbert, the real estate therein described, to have and to hold the same to them and the survivor of them, &c. " in trust, to and for the uses and purposes herein after mentioned, and to and for no other use and purpose whatsoever; that is to say, in case he the said John Fitzgerald shall neglect any part of his duty as collector of the said port of Alexandria," &c. knew at the or in case any note or notes so drawn, indorsed and netime of taking the mortgage gotiated at the bank of Alexandria, for the particular use the bond, and future in is valid against the U nited States, although it turns out that the collector was unable to pay all his debts at the time the mortgage was giv. en, and although the mortgagee STATES V. HOOE AND that the mortlargely ingagor was debted to the United States, Costs are not to be awarded against the United States. and accommodation of him, the said John Fitzgerald, THEUNITED shall not be taken up and discharged by him when the same shall become payable; that in either case, as soon as any demand shall be made upon him, the said R. T. Hooe," &c. "for the payment of any sum or sums of money which ought to be paid by the said John Fitzgerald," &c. then the trustees should, upon notice given them by Hooe, of such demand, proceed to sell the property for ready money, and after paying the expenses of sale, should pay and satisfy the sum or sums of money so. demanded of Hooe, either as security for Fitzgerald's due and faithful execution of the office of collector of the said port of Alexandria, or as indorsor of any note or notes so drawn by Fitzgerald, "and negotiated at the bank of Alexandria for the particular accommodation of the said John Fitzgerald ;" and lastly, to pay over to him the surplus. And in further trust that if Fitzgerald should duly keep Hooe indemnified, &c. and should duly pay the several notes which should be so drawn by him and indorsed by Hooe, and negotiated at the said bank, "for the particular accommodation of him, the said John Fitzgerald, as the same shall become payable,” then the trustees should reconvey, &c. Hooe had indorsed Fitzgerald's notes at the bank to a large amount, and at the time of his death there were unpaid two notes of 1000 dollars each, and one of 1800 dollars, one of which for 1000 dollars, together with interest upon the whole, amounting to 288 dollars and 94, cents, was afterwards paid by Mr. Keith, one of the executors, in order to prevent a sale of the property under the trust. There was also evidence tending to show that the money borrowed from the bank upon Hooe's indorsement, was applied in discharge of warrants drawn by the treasury upon Fitzgerald. Fitzgerald died in December, 1799, having by his will directed his real estate to be sold for the payment of his debts. There was no positive evidence of his insolvency. The bill charged that he died insolvent, and that the United States had a right, in preference to all others, to apply his property to the discharge of the debt, and if there should be a deficiency, to resort to the surety for the balance, as far as the penalty of the bond would jus THE UNITED tify; and that the deed of trust was fraudulent as to the V. HOOE AND On the 1st of May, 1802, the injunction was dissolved by consent, and an interlocutory decree entered, ordering the trustees to pay the proceeds of the sale into court, subject to future order, touching the contending claims of the United States and Hooe. At November term, 1802, the court passed the following decree : "The objects of the bill filed in this cause were to set aside a deed executed on the 16th of January, 1799, by John Fitzgerald to William Herbert and John Carlyle Herbert, conveying certain property therein mentioned, in trust, for the purpose of indemnifying Robert Townsend Hooe as indorsor of certain notes negotiable in the bank of Alexandria, and as surety of John. Fitzgerald in his office of collector of the port of Alexandria; to oblige the said trustees to account with the United States for the said real property, and to compel the executors to account for the personal estate of the said John Fitzgerald, and to pay the same to the United States towards the discharge of the balance due from him; and further to restrain and enjoin the said trustees from making sale of the said real property." An injunction for the said purpose was granted by one of the judges of this court, in vacation; and afterwards, viz. at April term, 1802, after the appearance of the defendants, who were of full age, an agreement was made, and entered on the records and proceedings of this court, to the following effect, viz. that so much of the former order of this court, as restrained the defendants, W. Herbert and John C. Herbert, from selling the property in the deed of trust, in the bill mentioned, be discharged; and it was further decreed and ordered, that the said trustees should pay the proceeds arising from the sale of the said property, or of any part thereof, into this court, subject to the future order of the court, touching the contending claims of the United States, and of R. T. Hooe, one of the defendants to the said bill; and now, at November term, 1802, the said cause came THE UNITED V. OTHERS. on by consent of parties, and by order of the court, on the bill, and on the answers of the defendants, (those of the infants being taken by their guardians, HOOE AND appointed for that purpose) and on the exhibits in the said bill and answers referred to, and on those afterwards admitted, and the arguments of counsel being heard in the said cause, and the same being by the court fully considered; it is the opinion of the court, that the deed of trust, in the said bill mentioned, was made bona fide, and for a valuable consideration, and was fairly executed by the said John Fitzgerald, to indemnify, and save harmless, the said R. T. Hooe, from all loss and damage, by reason of his indorsement of several notes, negotiated at the bank of Alexandria, amounting to the sum of 3,800 dollars, to enable the said John Fitzgerald to pay that sum to the United States; which appears to have been paid accordingly; and also, to indemnify and save harmless, the said R. T. Hooe, against all loss and damage, by reason of his having become bound in a bond, in the penalty of 10,000 dollars, payable to the United States, as security for the said John Fitzgerald's faithful performance and due discharge of the office of collector of the customs, in the district of Alexandria. That there does not appear to have been any fraud in the said parties, or either of them, and that the said deed is not invalidated by any law of the United States. It is thereupon, by this court decreed and ordered, that the bill in this cause, as to all the defendants, except R. T. Hooe, W. Herbert, and J. C. Herbert, be retained for t further order and decree of this court, and that as to the said defendants, R. T. Hboe, W. Herbert, and J. C. Herbert, the said bill be dismissed with costs to the said defendants. And as to the money which has arisen from the sale of the said real property, the net amount of which is 14,318 dollars and 66 cents, after deducting the charges of the sale, and which has been, by the order of this court, deposited by the clerk thereof, in the bank of Alexandria; this court doth decree and order, that the said clerk do pay the sum of 4,318 dollars and 66 cents, part thereof, to the said trustees, W. Herbert and J. C. Herbert, to be by them applied to the dis |