quently, no error was committed in refusing to answer the question propounded.

The record also exhibits a part of the charge given to the jury, on which the counsel for the plaintiffs have argued as if it composed a part of the bill of exceptions. It is in these words: "And the said court, prior to the request last mentioned, did declare and give their opinion to said jury, that the case wholly turned upon the point whether or not the said defendants had given due and seasonable notice of the change of the destination of said ship. That it was a question proper for the said jury to decide whether such due and seasonable notice had been given; and that if they were of opinion it had been so given, on considering the whole of the evidence, they ought not to allow the plaintiffs' said charge for said premium."

That a party has a right to except to a misdirection of the jury contained in the charge of the judge who tries the cause, is settled in this court. (Ante, vol. 2. p. 239. Church v. Hubbart.)

That the opinion which the record ascribes to the judge in this case is incorrect, unless some other part of the charge shall have so explained it as to give to the words a meaning different from that which is affixed to them taken by themselves, is the opinion of this court.

The judges instructed the jury, "that the case wholly turned upon the point whether or not the defendants had given due and seasonable notice of the change of the destination of the said ship," and that if they were of opinion that due and seasonable notice had been given, they ought to find against the plaintiffs, on the question of their right to recover the premium advanced by them for the defendants.

Due and seasonable notice must have been given as soon after the destination of the vessel was changed as it could have been given, whether the premium had or had not been advanced by the plaintiffs before they received it; or this direction must have left it to the jury to determine whether notice was or was not due and seasonable, although it might not have been received by the plaintiffs before they had actually advanced for the defendants the sum in contest.

Smith

V.

Carrington.

* 72

Smith

V.

On the first exposition, these words would amount Carrington. to a clear misdirection of the jury; because, if the plaintiffs had paid to the underwriters, at the request of the defendants, the premium of insurance, before they received notice countermanding the directions to make such payment, the right given by subsequent circumstances to the insured to demand its return from the underwriters, could not affect the claim of the plaintiffs on the defendants, for money fairly advanced by them for the use of the defendants.

*73

If the latter construction be adopted, there was still a misdirection on the part of the court. The judge ought not to have left it expressly to the jury to decide whether notice given immediately after the change of the destination of the vessel could be due and seasonable notice, unless it was received before the premium was advanced.

It is, however, not material to the present cause to determine whether this exception does or does not exhibit a misdirection to the jury, since we are unanimously of opinion, that for admitting a paper purporting to be the copy of a letter from Edward Carrington to Smith & Ridgeway, to go to the jury, which was not proved to be a copy, the judgment must be reversed.

Judgment reversed,

PENDLETON AND WEBB v. WAMBERSIE ET AL.

An assignee ERROR to the circuit court for the district of of an assignee of a copartner Georgia, in a suit in equity, in which Pendleton & in a joint pur. Webb were complainants, and Emanuel Wambersie, chase and sale fames Seagrove, and the representative of James sustain a bill Armstrong, Jacob Weed, and Henry Osborne were dein equity a fendants.

of lands may

gainst the

other copart

The bill stated that Henry Osborne, Jacob Weed, ners and the James Armstrong, James Seagrove, and the complain

agent of the

concern, to

compel a discovery of the quantity purchased and sold, and for an account and distribųtion of the proceeds.

That

ant, John Webb, on the 22d of December, 1786, en-
tered into an agreement with each other, under seal, to
procure lands on their joint account in the state of
Georgia, to an amount not exceeding 200,000 acres, at
*their joint expense, and for their joint benefit. That
grants were obtained for about 165,000 acres.
Webb by deed transferred all his right to the lands and
contract to John M'Queen, in consideration of 400%.
sterling, to be paid in four equal annual instalments.
That M'Queen, not having paid Webb, assigned his
right to Pendleton, the complainant, who undertook to
indemnify M'Queen against Webb's demand. That
Webb has never received the money due from
M'Queen. That Wambersie, as agent for the company,
had sold 60,000 acres of the land in Holland, at one
dollar and fifty-six cents per acre, had received in cash
51,000 dollars, and had made himself liable for the
balance. That he has refused to pay to the complain-
ant, Pendleton, the one fifth of the purchase-money.
That the other defendants refuse to divide the residue
of the lands, and to account for the profits, &c. That
the lands are liable, in the hands of the purchasers, for
the balance of the purchase-money, both to the com-
plainant Webb, for the purchase-money due to him, and
the complainant Pendleton, for his one fifth of the amount
of the sales. The bill seeks a discovery of the amount of
lands granted to the company, of the amount sold, &c.
and prays that the defendants may account, and that
the lands may be charged with the balance of the pur-
chase-money, &c.

The defendants demurred for want of equity in the bill, and the court below sustained the demurrer, and decreed that the bill be dismissed, with costs.

But this court, without argument, overruled the demurrer, reversed the decree, and remanded the cause for further proceedings.

This court

issue the writ

*EX PARTE BOLLMAN AND EX PARTE

SWARTWOUT.

C. LEE moved for a habeas corpus to the marshal of has power to the district of Columbia, to bring up the body of of habeas cor- Samuel Swartwout, who had been committed by the pus ad subjici- circuit court of that district, on the charge of treason To consti- against the United States; and for a certiorari to bring tute a levying up the record of the commitment, &c.

endum.

of war, there

must be an

And on a subsequent day, Harper made a similar moassemblage of tion in behalf of Erick Bollman, who had also been compersons for mitted by the same court on a like charge.(a)

the purpose of

effecting by

force a trea- (a) On a former day (Feb. 5.) C. Lee had made a motion for a habeas sonable pur- corpus to a military officer to bring up the body of James Alexander, an pose. Enlist attorney at law at New-Orleans, who, as it was said, had been seized by iment of men an armed force under the orders of General Wilkinson, and transported to serve a- to the city of Washington.

gainst govern

ment is not CHASE, J. then wished the motion might lay over to the next day. He sufficient. was not prepared to give an opinion. He doubted the jurisdiction of this When war court to issue a habeas corpus in any case.

is levied all

those who perform any part, however minute, or how

ever remote from the scene of action, and

JOHNSON, J. doubted whether the power given by the act of congress, vol. 1. p. 101. of issuing the writ of habeas corpus, was not intended as a mere auxiliary power to enable courts to exercise some other jurisdiction given by law. He intimated an opinion that either of the judges at his chambers might issue the writ, although the court collectively could not.

CHASE, J. agreed that either of the judges might issue the writ, but who are actu- not out of his peculiar circuit.

ally leagued

in the general MARSHALL, Ch. J. The whole subject will be taken up de novo, conspiracy, without reference to precedents. It is the wish of the court to have the are traitors. motion made in a more solemn manner to-morrow, when you may come Any assem- prepared to take up the whole ground. [But in the mean time Mr. -blage of men Alexander was discharged by a judge of the circuit court.]

for the pur

pose of revo

Jutionizing by force the government established by the United States in any of its territories, although as a step to, or the means of executing, some greater projects, amounts to levying war. The travelling of individuals to the place of rendezvous is not sufficient; but the meeting of particular bodies of men, and their marching from places of partial, to a place of general rendezvous, is such an assemblage as constitutes a levying of war. A person may be committed for a crime by one magistrate upon an affidavit made before another. A magistrate, who is found acting as such, must be presumed to have taken the requisite oaths.

Quare, whether, upon a motion to commit a person for treason, an affidavit stating the substance of a letter in possession of the affiant, be admissible evidence? The clause of the 8th section of the act of 66 congress, for the punishment of certain crimes against the United States," vol. 1. p. 103. which provides that "the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought," applies only to offences committed on the high seas, or in some river, haven, basin, or bay, not within the jurisdiction of a particular state, and not to the territories of the United States, where regular courts are established, competent to try those offen

The word "apprehended," in that clause of the act, does not imply a legal arrest, ta the exclusion of a military arrest or seizure.

The order of the court below, for their commitment, Ex parte Bollwas in these words:

"The prisoners, Erick Bollman and Samuel Swartwout, were brought up to court in custody of the marshal, arrested on a charge of treason against the United States, on the oaths of General James Wilkinson, General William Eaton, James L. Donaldson, Lieutenant William Wilson, and Ensign W. C. Mead, and the court went into further examination of the charge: Whereupon it is ordered, that the said Erick Bollman and Samuel Swartwout be committed to the prison of this court, to take their trial for treason against the United States, by levying war against them, to be there kept in safe custody until they shall be discharged in due course of law."(a)

The oaths referred to in the order for commitment, were affidavits in writing, and were filed in the court below.(b)

*C. Lee, for Swartwout.

Notwithstanding the decisions of this court in Hamilton's Case, 3 Dall. 17. and in Burford's Case, ante, vol.

(a) The warrant by which they were brought before the court was as follows:

DISTRICT OF COLUMBIA, to wit:

The United States of America, to the marshal of the district of
Columbia, greeting :

Whereas there is probable cause, supported by the oath of James Wilkinson, William Eaton, James Lowrie Donaldson, William C. Mead, and William Wilson, to believe that Erick Bollman, (Seal.) commonly called Doctor Erick Bollman, late of the city of Philadelphia, in the state of Pennsylvania, gentleman, and Samuel Swartwout, late of the city of New-York, in the state of New-York, gentleman, are guilty of the crime of treason against the United States of America;

These are, therefore, in the name of the said United States, to command you that you take the bodies of the said Erick Bollman and Samuel Swartwout, if they shall be found in the county of Washington, in your said district, and them safely keep, so that you have their bodies before the circuit court of the district of Columbia, for the county of Washington, now sitting at the capitol, in the city of Washington, immediately to answer unto the United States of America of and concerning the charge aforesaid. Hereof fail not at your peril, and have you then and there this writ. Witness the honourable WILLIAM CRANCH, Esq. Chief Judge of the said court, this 27th day of January, 1807.

Issued 27th day of January, 1807.

WILLIAM BRENT, Clerk.

(6) For these affidavits, see Appendix, Note (A).

man and Swartwout.

*77