
    [Present, Chancellors Rutiejioe, Ja-mes and Thompson.]
    The Representatives of William Wragg, vs. The Comptroller-General, and others, creditors of A. Irvine.
    May, 1807.
    A vendor selling' lands, and conveying them in fee .and taking a bond for the purchase money, without taking a mortgage, has no implied lien on the land, so as to give him any preference over the other creditors of the purchaser.
    And the act confiscating the property of the purchaser gave nc, preference to the vendor, who had not taken a mortgage. None of the subsequent acts on the subject of confiscated estates, have made any difference among creditors, but put them on the same footing, or left them to their legal priorities
    
       THE object of the complainant’s bill was to obtain the benefit of an equitable lien, which they insisted they were entitled to, on a tract of land sold by their ancestor Mr. Wm. Wragg,now deceased,, to Mr. Andrew Irvine.
    The complainant’s bill sets forth that Wm. Wragg did, in 1773, sell and convey to Andrew Irvine, a certain barony on Savannah river, in this state, for which he took bonds °f said Andrew Irvine, payable at a future day : that said bonds remained unpaid in 1782, in which year general assembly of this state confiscated all the property of said Andrew Irvine; but declared the same subject to the payment of his debts. In 1794, the commissioners of the treasury issued to the representatives of said William Wragg certain certificates on account of Irvine’s bonds, which certificates ai'e now in the possession of the complainants unpaid, and certain other certificates to the agents. or representatives of Shirley & Price, being for a debt due them on open account by said Irvine ; which certificates are now in the possession of, or are claimed by JoJm Ward, Thomas W. Bacot, and Anne Price.
    That the commissioners of forfeited estates, pursuant to the confiscation act, sold the barony in 1782, as the property of said Irvine, to sundry purchasers for indents; some of whom paid the indents due by them into the treasury ; but others refused or neglected to pay, and became insolvent': Wherefore it became necessary tot resell the lands .purchased by them : that sundry tracts were accordingly resold in July last by the comptroller-general; but the proceeds arising from the sale be ing the w hole of the funds applicable to the payment of said Irvine’s debt to said Wm. Wragg, will not pay more than two thirds thereof, even should the whole be exclusively applied to that debt.
    That the late purchasers of said lands, with the consent of complainants, who have offered to give receipts on their certificates for the amount of said sales, have applied to the comptroller-general for titles to the land so purchased, until which, they cannot be required by complainants to pay their purchase money: but the comptroller-general and the other defendants object to, and refuse the delivering titles unto the said purchasers, unless they, or complainants in their behalf, first deposit in the treasury such a portion of the proceeds of sáid sales as shall satisfy fh4 specie certificates issued to the representatives of Shirley & Price; the comptroller-general moreover threatening to resell the land : the said defendants pretending that said sa^e was tnade for the benefit of all Irvine’s creditors, as wen on 0pen account as on specialty : Whereas complainants contend that their claim stands on a different footing, and is paramount to that of Shirley & Price, inasmuch as complainants demand arises out of the sale of the lands which belonged to their father, and over which said Andrew Irvine never exercised any ownership, and now constitute the only fund applicable to the payment of Irvine’s debt, and was moreover secured by the specialty of said Irvine : Whereas the claim of the representatives of Shirley & Price arises on open account only, and it is not just they should be paid from sales of lands which belonged to complainants father, while there remain due to complainants for the same by said Irvine, IS or $16,000, and the whole nett amount of sales will not exceed $10,000.
    
      Bill prays the court to decree and adjudge the whole proceeds of sales to he applied — in the first instance, exclusively to the complainants demand, and to direct the comptroller-general to make titles to the purchasers cn complainants executing proper n ceipts and discharges for the nett amount of sales, without depositing any part in the treasury for the representatives of Shirley & Price, and that the comptroller-general be enjoined from proceeding in a resale of said lands, or such' other relief as the court may deem consistent with equity and good conscience, &c.
    The defendants put in anstvers to the following effect. — • The answer of the comptroller-general sets forth that he believes the lands in bill mentioned were a part of a barony which was purchased in 1773, by A. Irvine from W. Wragg, father of complainants, 8c for which said A. Irvine gave tbe bonds on which the specie certificates were issued, which are now held by complainants, and that the debt due to Shirley & Price by Irvine, was on open' ac-couní” ®ut ^oes not conceive hifrisetf authorized to edmply with complainants requisitions, as the legislature have appropriated the funds in question to the payment of a.q the creditors of Andrew Irvine, without- regard to the natu-re of their several and respective claims ; and the certificates- issued to Shirley & Price are of the same tenor as those held by complainants ; and- that from the nature of those certificates, which may be considered as- the obligations of the state,, defendant is-bound to pay out of those funds a due proportion to the representatives of Shirley & Price, unless Otherwise directed by the coúrtr
    The answer of John Ward sets forth, that he neither admits or denies the facts set- forth iii bill, save as follows: That his father Joshua Ward, was formerly a co-attorney, (together with Nathaniel Russell) of Shirley; and on the-.death of his father, defendant found the specie certificate in bill mentioned among his papers ; that the same is still in defendant’s possession, but he has no interest therein, the said Shirley having left, as he believes, representatives residing in England.
    The answer of Thomas W. Bacot sets forth, that he neither admits or denies the facts in bill, save as follows :
    That a specie certificate as there mentioned, was issued from the treasury to Thomas Nicholls, executor of Wm. Price, and that defendant, as attorney of said Nicholls, "received the same from him, -to be applied to payment of a debt due by the estate of Price. That defendant is still in possession thereof, but has no interest whatever therein.
    The answer of Ann Price sets forth, that she neither admits or denies the facts in bill, save as follows :
    That a specie. certificate as therein mentioned, was is, sued from ihe tr. usury to TT.mas Michals, as executor of Wm. i’rice, the defendant’s husband, and which certificate ¿efen(jant claims as her property, as the widow and re- ■ £ i » / ^ presentative of said V7m. Price ; and she denies the prior right °* complainants, but insists that the fund is to be distributed in equal proportions to all the creditors of Irvine, and submits her rights to the protection of the court.
    The cause carne to a hearing :
    Mr. Lee, the comptroller-general, stated to the court by consent of the counsel on both sides, that the bond of Mr. Andrew Irvine was executed and delivered by him to the late Mr. Win, Wragg, for the price of a tract of land or barony, sold by Mr. Wragg to him. That the debt of Irvine to Shirly & Price, was on open account. That thq commissioners of confiscated estates having sold the land of Irvine, as confiscated, the legislature had ordered that certificates should be given to the creditor? of Irvine, to be paid out- of the sales of that estate; but had made no distinction between bond creditors and creditors on open account: and the treasury officers had given certificates •«yithout distinction.
    The lands of Irvine which were sold, and produced the fund in the treasury, were those sold to him by Mr. Wragg, and not paid for,
    Mr. W. L. Smith for complainants,
    contended, that on the sale of the land, in the year 1773, by Mr. Wragg to Mr. Irvine, without receiving payment of the price, an equitable lien attached on the land, in the hands of the purchaser, and all claiming under him, except bona fide purchasers for valuable consideration, without notice of the non payment of the purchase money. That this equitable lien is an ancient and well settled doctrine, founded on a long series .of decided cases, and in natural justice.— See 1 Vera. 267. 2 Eq. Cas. abr. 682. 2 P. Wms. 291, 496. 3 P. Wms. 307. 2 Ves. sen. 622. 3 Atk. 272, and 1 Bro, C. C. 420.
    
      That anv alteration attempted to be made in the rights or sitúa don of the parties by any subsequent law, would be exibost facto, and void. But that in fact no such attempt had been made ; for if the acts of the legislature were carefully examined, it would be found that it was not intended to change the condition, or alter the rights of the parties. That the confiscation law of February, 1782, expressly reserved the rights of creditors. That none of the subsequent acts of 1783,or of March, 1784, March, 1785, or March, 1786, on the subject of confiscated estates, indicated any intention to vary the rights of the creditors. Nor did the restoring acts mpan or express any intention to alter the relative rights of creditors. The equitable lien then, originally existing, continued in full force ; and the officers of the treasury, in delivering certificates to the creditors, could not, by their neglecting to distinguish the grades of the claims of the different creditors, affect or take away the lien on the land, or its effects, on the amount of sales of the land. It must have been sold subject to all the rights of third persons, and the funds in the treasury arising from the sale, were subject to this equity.
    Mr. Desaussuhe for the defendants,
    argued, that the equitable lien contended for, was of a very' evanescent kind, and was destroyed by slight circumstances. That .the vendor taking a bond from the purchaser, put an end 
      to the equity, as it shewed that He did not rely on the implied equitable lien On the land,- but On the personal responsibility of the purchase!-, as was done in this case.— That there was a good deal of diversity of opinion among the chancellors about the extent and duration of this implied equitable lien ; but most of the cases considered the taking a bond Or nóte, a renunciation Of the equity ; and that the case of Fawell v. Heelis, decided by Lord Cham cellor Aspley, in June, 1773, seé Ambler, 724, was directly in point, that the vendor taking a bond for the consideration money of the land sold, has no lien against the creditors of the vendee : and it was quite proper that it should be so’; else this implied lien Would frequently and unexpectedly rise up against creditors; who could never be secure against such secret liens, which were altogether adverse to the policy of our law, which required mortgages and evidences of Hens on property to be recorded.-
    
      
       The doctrine of equitable liens^ has been a subject of considerable discussion and difference of opinion at different times.
      One pf these equities is, where a man borrows money, and deposits ■the whole or a part of the title deeds of his iand, with the lender, this has been held to be manifestly for the purpose of securing the repayment of the money, though no mortgage be actually given. Ifc ;s said that equity, regaining the- intention of the parties, will raise an agreement which it will enforce, that the land shall stand as a pledge for the debt. In Halesvs. Vanderchem, 2 Vern. 617, it was decided, that though agreements, since the statute of frauds, are not to be pai't paro], and part in writing, yet a deposit for a performance of a writ» ten agreement, without there being any writing declaring the deposit to be a security, is not within the purview ofthe statute.
      In Russell vs. Russell — 1 Bro. C. C 269, the pledge of a lease was carried into effect in favor ofthe lender of money, even against the assignees ofthe pledger, who had become bankrupt; notwithstanding the objection was taken, tlut it was charging land without writing, contrary to .the 4th clause ofthe statute of frauds; an issue was directed by the lords commissioners to try whether thg lease was deposited as a security for the money advanced, and, the jury found that it was so deposited : Whereupon Lord Thurlow, (who had resumed the seals) ordered the land to be sold, ..ndthe plaintiff to be paid his money. And so in Featherstone vs. Fenwick, (May, 1784) and Harford vs Carpenter, Lord Thurlow held that the deposit of deeds entitled the holder to have a mortgage, ..nd to have his lien effectuated ; for although there is no special agreement to assign, the deposit affords a presumptionthat such was the intent. (See 1 Bro. C. C. 270, in note.)
      In the case ex parte Wetherall, 11 Ves. 398, the Lord Chancellor Eldon decreed that the deposit of part of the title deeds, with- written, evidence, by which it appeared that the party covenanted that the object was to create a security upon the premises, should be an equitable mortgage. Here we see that the lord chancellor puts the lien op fhe ground ofthe writteu'evidence, that the party had agreed to givq securities, and actually deposited the title deeds for that purpose.— (Page 403.)
      In the next case, ex parte Haigh, 11 Ves. 403, Lord Chancellor Eldon decided that an equitable mortgage took place upon the mere deposit of alease, without any writing to shew the object of it. But he said he disapproved of it, and that he did it on the authority of Lord Chancellor Thurlow, in the case of Russell vs. Russell, 1 Bro. C. C. 269, which he said was a decision greatly to be lamented. He added that this decision, that amere deposit of deeds, should be considered as evidence of an agreement to make a mortgage, had led to a discussion upon the truth and prob dúlit; of evidence, which it was the object of the statute of frauds to prevent.
      In the case, ex parte Finden, (11th Jan. 1805,) Lord Chancellor Eldon had also disapproved of Lord Thurlow’s decision in Russell vs. Russell, as breaking in on the statute of frauds ; and he declared that a deposit of deeds should not be considered a mortgage, but in a clear case. In the case of Norris vs. Wilkinson, 12 Vesey, 192, the master of the rolls, Sir Wm. Grant; disapproved of the decisions which had established, that the mere deposit of deeds should constitute a mortgage or equitable lien, Fit required parol evidence to explain the intent of the deposit, for that was contrary to the statute; but he held himself bound to go as far as the cases had gone, but not to extend them. Where the deeds are deposited at the same time that the mo-tiey is advanced, itis obvious that the purpose must be to secure the repayment. ljut if the deeds are deposited to have a mortgage drawn, it will not be alien If the party dies meanwhile: this was for another object; that is, to have a regular mortgage; and the death of the party intervening, shall not give the effect of creating- a mortgage! from a deposit of deeds, which was made not as a security, but to have' a mortgage drawn.
      In Mountfotd, ex parte, 14 Vesey, 60S, 6, the lord chancellor re^ cognized the doctrine of an equitable mortgage by a deposit ofdeeds? but said the court would examine the terms. And in Langston, ex parte, IT Vesey, he again supported the equitable mortgage by deposit of deeds ; even covering subsequent advances that were made on that security. In Combe, ex parte, 17 Yesey, 369, the lord chancellor stated that this equitable mortgage, by deposit of deeds, was not favored, especially when contradicting a written instrument.
      If one agrees for a valuable consideration to convey lands to J S. and afterwards Confesses judgment to ,T. N. if the money paid by J, Íí. be adequate to the value of the land, it binds the land in equity; and defeats the judgment. Finch vs. Earl of Winchelsea, 1P. Wms. 277, by Lord Cowper.
      Another equitable lien is, where the owner of lands sells them, and delivers the possession of the estate to the purchasers, withoutreceiv-■sng the purchase money, which was the case before the court, in the iext. In such case, equity will give the vendor a lien on the land for the money, although there was no special agreement for the purpose, and whether the land be actually conveyed or not. And so the vendee has a lien on the estate, for the purchase money paid, if by any means titles cannot he mude to him, even though he took another security for the money advanced. See Sug-den’s law of vendors, 352. Chapman v Tanner, 1 Vern. 267. Pollexfen v. Moor, 3 Atk. 272. Mr. Sugden goes on to state the doctrine, with its modifications and exceptions with great clearness, p. 352, to ■356. Andthe Lord Chancellor Eldon,-reviewed the whole doctrine, and all the cases, with so much ability, in the case of M ckreth v. Simmons, reported in 15 Vesey, 329, that I would beg leave to refer the reader to that case. But as thatbo’ok is in few hands, the following statement may be useful. The Lord Chancellor supposes this equity is derived from the civil law, as to g-oods, by which the lien of the vendor, is so strong, that (with certain excepted cases) the goods may hetaken outofthe possession of the individual who had obt.ined actual or constructive possession of them, to secure the payment of the purchase money. The Lord Chancellor considered the doctrine of áuch equitable lien, to have been settled very early in this court, and never to have been shaken but by Lord Chancellor Aspley, in the case of Fawell v. Heelis; Amb. 724. 1 Bro. C. C 3d. Ed. 422. — (Note.)
      The Lord Chancellor said, that the settled doctrine (notwithstanding-thecaseofFawell & Heelis) is that wherethe vendor conveys, without more, though the consideration is upon the face ofthe instrument expressed to be paid, and even’ by a receipt endorsed on the back, if it is the simple case of a conveyance, the money or part of it, however, not being- paid, a lien shall prevail, upon the doctrine ofthis court, (which has the effect of contract, thoughperhaps no actual contract has taken place) as between the vendor and vendee, and persons claiming as volunteers,- (ISVesey, p. 3-37.) And in a subsequent passage, (p. 343,) he stated that it was too late to raise a doubt upon the question of the lien between the vendor and vendee. 1-Ie then proceeded to examiné the cases as to the question whether 'the lien would prevail against third persons, with notice of the situation of vendor and vendee. The earliest case was that of Hearn v. Botlers, Cary. 25; imperfectly reported. Then Chapman v. Tanner, 1 Vern 267, which is also imperfectly reported. But the declaration of the court, what was the natural equity, shews strongly how th e law upon the subject Was understood.
      The next case was Bond and Kent, 2 Vern. 281, which turned on special circumstances; admitting however that without these special circumstances, there would have been a lien. In Gibbons v. Baddall, 2 Eq. Cas. Abr. Tit. Pun-chaser, 682, Note, it is expressly stated, that, the lien remained,-though a note was given' for part of the purchase . money. In Pollexfen v. Moor, 3 Atk. 272, Lord Hardwicke affirms the lien, of the vendor, upon the estate, for the remainder of the pun-chase money, considering the vendee, a trustee as to the money, for the vendor. But he adds that “ this equity will not extend toa third person.” Lord-Eldon says, if that expression is tp be understood, as asserting that this equity would not extend to a third person, who had notice\hatthe money was not paid, Lord Hardwicke’s subsequent, decisions contradict that. The cases of Harrison v. Southcoate, 2 Ves. sen. 389, 393, and Walker v. Prestwick, 2 Ves. 622, both decided by Lord Hardwicke, admitted the doctrine.
      In Burgess vs. Wheate, 1 Blacks. Rep. 123, the master of the rolls, Sir Thomas Clarke, lays down the rule both as to vendor and vendee, thus — “ When a conveyance is made prematurely, before the money is paid, the money is" considered as a lien on that estate in the bands of the vendee : so where money is paid prematurely, the money would be considered alien on the estate in the hands of the vendor for the personal representative of the purchaser.”
      Tardiff vs. Scrughan, cited in Ambl. 725, 6 — 1 Bro. C.-C. 423, before Lord Camden, in 1769, is material, for it is represented as a case in which the lien was held to attach upon the two moieties of the estate. In Powell vs.-, Lord Camden is said to have determined in favor ofthe lien ; but there is no accurate report of the case. In Fawell vs. Heelis, Ambl. 724, 1 Bro. C. C. 422, n. Lord Chancellor Bathurst’s opinion, was certainly that the bonds taken by the vendor furnished evidence that credit was not given to the land, and thcrer fore there was no lien
      In Becket vs. Cordly, 1 Bro. C. C. 353, 8, Lord Thurlow as_serted the general doctrine as familiar ; but distinguished the case then before him, and held-that under the circumstances the lien was dis-' charged.
      In Blackburn vs. Gregson, 1 Bro. C. C. 420, Lord Kenyon took the doctrine to be perfectly clear ,- and Lord Loughborough expressed a clear opinion that the lien existed, though he did not decide the case. In Smith v. Hibband, 2 Dickens, 730, it was insisted that the payment of part of the purchase money was evidence that he meant to trust to the personal security. But it was held olear that the mo'ney contracted tobe paid was a specific lien on the premises. The opinion of Lord Chancellor Eldon, in Austen vs. Halsey, 6 Vesey, 475, 483, is only a dictum; but it isinfavorofthe lien, unless it evidently appeared that the lien, by implication, was not intended to be reserved. In the case of Elliott vs. Edwards, 3 Bos. and p. 181, the master of the rolls, Lord Alvanley, states, that if a man having- purchased an estate, conveys it before the purchase money has been paid, the court of equity will compel, the person'to whom the estate was conveyed, to pay that money: Provided he knew at the time he took the conveyance that it had not been paid. In the case of Nairn & Prouze, 6 Ves. 752, SirWm. Grant, the master of the soils, decided that the vendor-having taken a security for the -money, payable at a future time, amounted in that ease to a waiver of the implied lien, which he admitted would otherwise prevail. The Lord Chancellor Eldon in commenting on this case, (15 "Vesey, 348, 9,) does not seem to be entirely satisfied with it. He admits with the master of the rolls that the nature of the security taken, may amount to satisfactory evidence that a lien was not intendedto he reserved ; buthe states that even a mortgage of another estate, taken asa security by the vendor, is not conclusive ground for the inference that a lien was not intended.
      In the case of Hughes vs. Kearney, 1 Schoales & Lefroy, 132, Lord Eedesdale states the doctrine to be, that the purchase money unpaid i aprima facie alien on, the lands sold; and if a security is taken for. that money, it lies on the vendee to shew that the vendor agreed to rest on that security, and to-discharge the lands: and a note or bills arc considered not as a security,’bat as a mode of payment.
      As aresult of these cases, Lord Eldon states, that generally speaking, there is such a lien ; and tha( where there would be alien between the vendor and vendee,^the vendor will have the lien against a third person, who had notice thatthemoney was not paid. These two points he considered clearly settled ; and the chancellor Said- that if he had not found authority, that the lien would attach upon a third person having notice, he should not have hud any difficulty in deciding that, upon principle, as he cottld not perceive any difference be* tween this species of lien, and other equities, by which third persons having notice, are bound, • .
      Lord Eldon then proceeded to decide on the circumstances of the case of Mackreth v. Simmons, which was before him, and had led him into an examination of th e decided cases; and he decreed that for part of the purchase money, the vendor had taken such securities as amounted to satisfactory evidence that he relied on them, and not on the land: hut that for the remainder, he should have a lien on thedand.
      This note has been drawn out to great length, because the subject has not been much discussed in this country; and the argument before the cqurt in the principal case in the text, does not seem to have been so full as to have brought the whole doctrine to the view of the. cpui-t. What may bethe. result of another examination of tire subject before the Court of Appeals, cannot be foreseen, as it has never been bfifprs that court
    
   Chancellor Rutledge

afterwards delivered the décreé of the court:

In this case it was contended for complainants that the obligee hád an equitable lien on the lands in bill mentioned, no part of the purchase money having been paid, and to that point several cases were cited, which when examined are found generally not to apply. The case in Vernon was between vendor and the assignee of the vendee, who had become bankrupt.- The court determined the vendor had a natural equity, and that the land should stand charged’ with so much of the debt as was unpaid. The cases in 2 Eq. Ca. Ab. 682, & 3 P. Wms. 307, were between the vendor and third persons, who had purchased from vendee, and had notice of the equitable incum-brance on the land. The purchase money not being paid it was held that was sufficient notice for them to withhold payment. The cases of Coppin v. Coppin, 2 P. Wms. 291, and Pollexfen v. Moor, in 3 Atk. 272, do not apply,; and tbe question is not determined in Blackburne v. Gregory, 1 Brown, 420, for that case, was decided on another But in the case of Fawell v. Heelis, as reported in 1 Browrn, p. 421, in a note^ see also Ambler, 724, the point is determined that the vendor having taken bonds for the had no lien.

In England it is well known, that land, is not liable to the payment of debts, but in cases where the heir 'is specially bound; his right being peculiarly favoured and guarded. But in this country we all know that real and personal estate arc equally liable to the payment of debts, and the plaintiff may make his election out of what property he will have his debt satisfied. It is therefore absurd to talk of a bond creditor having an equitable lien on land he has sold, unless he has taken care to secure that lien by a mortgage, since whilst the debtor is alive, and indebted even on simple contract, if he is sued and judgment is obtained against him, any property heps possessed of, may be seized and sold to satisfy the judgment,’ if it is not secured by mortgage or otherwise. This has been. the law of this country for at least 60 years past. After the debtor’s death, the law then directs the order in which his debts are to be paid by his executors, and then for the first time a discrimination is made between creditors by-specialty, and those on simple contract. As the complainants then are not entitled to relief on the principle of an equitable lien in preference to other creditors, the next question is, whether the confiscation acts give them a preference ? The act of 1782, confiscates the real estate of Mr. Irvine, as a British subject.. He is not banished by that law', because he had never resided in this country. The act of 1783) declares that the creditors of confiscated estates by bond, bill, notes, or open account indiscriminately, where the estates are fully and clearly equal to the demands upon them, shall he paid their debts : Provided that nothing therein contained shall entitle any creditor to more than his proportion, where the estate is insufficient for the payment of its debts. The land in question, it is admitted, has not sold, for a sum su.tideiitto pay all the debts ; therefore under that law, the complainants debt cannot be fully satisfied 5 but complainants have taken to their aid, the act of 1784, for restoring to certain persons mentioned in list No', 1, thereto annexed, their estates, See. Unfortunately for complainant, Mr. Irvine’s name is not mentioned in the list, and therefore he could not, if alive have availed himself of the benefit of that law ; and if he could, the estate is nevertheless liable to an amercement, which the comptroller will deduct on a settlement with the creditors. Nor can complainants be benefited by the ordinance of 1784, because they have neither a mortgage or judgment to bind-the land.

It was further urged that the legislature intended to have given up the property altogether to Mr. Irvine’s representatives, and that one branch of the legislature had actually passed a resolution to that effect. Whatever may have been the intention of the legislature, it can only be known to the court, when it has been enacted into a law» Such a law has not been passed, and a resolution cannot repeal a positive law of the land.

The court are of opinion that the confiscation act of 1783, being unrepealed, the complainants can only be paid their demand in proportion with the other creditors of Mr. Irvine.

Costs to be paid out of the purchase money of the land.

See 1 Schoals and Lefroy, 132. 
      
       1 Vern. 167, Chapman v. Turner..-
     