"owing to the diminution of trade, she will have to devote herself to the pursuits of the country." The grant was made for the quantity of land apportioned by the regulations of East Florida, to the number of the family of the grantee. It was regularly surveyed by the surveyor-general, according to the petition and grant. No settlement or improvement was ever made by the grantee, or by anyone acting for her on the property. In 1831 Elizabeth Wiggins presented petition to the Superior Court of East Florida, praying for a confirmation of the grant; and in July, 1838, the court gave a decree in favor of the claimant. On an appeal to the Supreme Court of the United States, the decree of the Superior Court of East Florida was reversed. The court held that by the regulations established on the 25th November, 1818, by Governor Coppinger, the grant had become void, because of the nonimprovement, and the neglect to settle the land granted.

The United States v. Elizabeth Wiggins, (334) 481 2. The existence of a foreign law, especially when unwritten, is a fact to be proved like any other fact, by appropriate evidence. Id.

(lb.) 481

3. A copy of a decree by the Governor of East Florida, granting land to a petitioner while Spain had possession of the territory, certified by the secretary of the government to have been faithfully made from the original in the secretary's office, is evidence in the courts of the United States. By the laws of Spain, prevailing in the province at that time, the secretary was the proper officer to give copies; and the law trusted him for this particular purpose, so far as he acted under its authority. The original was confined to the public office.

ld.

FLORIDA LAND CLAIMS-15.

1. A claim to land in East Florida, founded on a grant by Governor Kindelan, to Robert M'Hardy. dated November 8, 1814, confirmed by the Supreme Court. The United States v. Rodman, (130) 685

2. The Supreme Court, in the case of The United States v. Clark (8 Peters, 48), say "that if the validity of the grant depends upon its being in conformity with the royal order of Spain of 1790, it cannot be supported:" but immediately proceeds to show, "though the royal order is recited in the grant, that it was, in fact, founded on the meritorious consideration of the petitioner having constructed a machine of great value for sawing timber; the recital of the royal order of 1790, in this grant, is entirely immaterial, and does not affect the instrument. Held, the recital of the royal order, in this case, is quite immaterial.

Id.

(Ib.) 685

4. The Spanish governors of Florida had, by the laws of the Indies, power to make large grants to the subjects of the crown of Spain. The royal order of Spain of 1790 applied to grants to foreigners. These grants, before the cession of Florida to the United States, had been sanctioned for many years by the King of Spain, and the authorities representing him in Cuba, the Floridas, and Louisiana. This authority has been frequently affirmed by the Supreme Court.

Id.

(lb.) 685

Id.

(lb.) 481 5. In the cases of Arredondo (6 Peters, 691), and Percheman (7 Peters, 51), it was held that the words in the Florida Treaty, "shall" be ratified and confirmed, in reference to perfect titles, should be construed "are" ratified and confirmed. The object of the court in these cases was to exempt them from the operation of the 8th article, for that they were perfect titles by the law of Spain when the treaty was made: and that when the soil and sovereignty of Florida were ceded by the second article, private rights of property were, by implication, protected. By the law of nations, the rights to property are secured when territories are ceded; and to reconcile the 8th article of the treaty with the law of nations, the Spanish side of the article was referred to in aid of the American side. The court held, that perfect titles "stood confirmed by the treaty; and must be so recognized by the United States, in our courts.

ld.

(lb.) 481 6. Perfect titles to lands made by Spain in the territory of Florida before the 24th January, 1818, are intrinsically valid, and exempt from the provision of the 8th article of the treaty; and they need no sanction from the legislative or judicial departments of the United States.

Id.

(lb.) 481

5. An application was made to the Governor of Florida in 1814, stating services performed by the petitioner for the government of Spain, and the intention of the petitioner to invest his means in the erection of a water saw-mill; and marking the place where the lands were situated which were asked for. The governor granted the land, referin consideration of the advantages which would result to the home and foreign trade by the use proposed to be made of the land. Held, that this was not a conditional grant, and that no evidence of the erection of a water saw-mill was required to be given to maintain its validity or induce its confirmation. (lb.) 685

Id.

6. See Mandate of the Supreme Court, 1, 3. 7. John Forbes, by memorial to Governor Kinde lan, the Governor of East Florida, set forth that, in 1799, there had been granted to Panton, Leslie & Company, for the purpose of pasturage, fifteen thousand acres of land, which they were obliged to abandon, as being of inferior quality. Forbes, as the successor to these grantees, asked to be permitted to abandon these fifteen thousand acres, and, in lieu, to have granted to him ten thousand acres, as an equivalent, on Nassau River. The petition avers that the object was to establish a rice plantation. The petition was referred to "the comptroller," who gave it as his opinion that the culture of rice should be promoted. Governor Kindelan permitted the abandonment of the fifteen thousand acres granted before, and, in lieu thereof, granted to John Forbes, for the object of cultivating rice, ten thousand acres in the district or banks of the River Nassau. Surveys of seven thousand acres of land, at the head of the "River sand acres in Cabbage Swamp," were made under Little St. Mary's," or "St. Mary," and three thouthis grant. No description of the locality of the land, other than that in the certificate of the survey, was given; nor do the surveys prove that the land surveyed lay in the district of the River Nassau. No evidence was given of the situation of "Cabbage Swamp." Held, that these surveys were not made on the land granted by Governor Kindelan; and according to the decisions of this court, on all occasions, the surveys, to give them validity, must be in conformity with the grants on which they are founded; and to make them the origin of title, they must be of the land described in the grant of the Spanish government. (173) 701

The United States v. Forbes,

8. The courts of justice can only adjudge what has been granted, and declare that the lands granted by the lawful authorities of Spain are separated from the public domain; but where the land is expressly granted at one place, they have no power,

by a decree, to grant an equivalent at another
place, and thereby sanction an abandonment of
the grant made by the Spanish authorities. The
courts of the United States have no authority
to devest the title of the United States in the pub-
lic lands, and vest it in claimants; however just
the claim may be to an equivalent for land, the
previous grant of which has failed.
ld.

(lb. 701
9. The decree of the Superior Court of East Flori-
da, by which a grant for fifty thousand acres of
land, made by Governor White, the Spanish Gov-
ernor of East Florida, dated July 29, 1802, was re-
jected, affirmed.

Buyck v. The United States,

(215) 715
10. The land had been granted by Governor White,
on a petition from the grantee, stating his inten-
tion to occupy and improve the same with Bozale
negroes, and native citizens of the United States;
and stating that other grants of the same lands had
been made, on condition of settlement, which con-
ditions had not been performed, and such grants
were therefore void. The petitioner promised to
make the settlement within an early period after
the grant. The governor granted the land, refer-
ring to the petition; also, with the condition that
the grantee should not cede any part of the land
without the consent of the government. No im-
provement or settlement was at any time made
on the land by the grantee. Held, that the gov-
ernment of the United States were not bound, un-
der the Florida Treaty, to confirm the grant.

Id.

(Ib.) 715
11. The description of the portion of land asked for
from the Spanish governor, "lands at Mosquito.
fifty thousand acres, south and north of said
place," is not sufficiently definite; and from such a
description, no exception could be made from the
public lands acquired by the United States under
the Florida Treaty. The regulations for granting
lands in Florida, by the Spanish authorities, re-
quired that grants should be made in a certain
place; and there were no floating rights of survey
out of the place designated in the grant; unless
where the land granted could not be got there in its
exact quantity, and an equivalent was provided
for.
ld.
(İb.) 715
12. The laws and ordinances of the government of
Spain, in relation to grants of lands by the Spanish
government, must be of universal application in
the construction of grants. It is essential to the
validity of such grants, that the land granted shall
be described, so as to be capable of being distin-
guished from other things of the same kind, or ca-
pable of being ascertained by extraneous testi-
Id.

mony.

(lb.) 715
12. A claim for a square of four miles of land,
under a grant from Don Jose Coppinger, Spanish
Governor of East Florida, situated at the north
head of Indian River, confirmed.

The United States v. The Heirs of De-
lespine et al.

(226) 719
13. The certificate of Don Tomas de Aguilar,Secre-
tary of the Government and Province, of the copy
of the grant of the governor, stating the same" to be
faithfully drawn from the original in the secretary's
office under his charge," was legal evidence of the
grant and was properly admitted as such, in sup-
port of the same.

Id.

(lb.) 719
14. A grant of ten thousand two hundred and forty
acres of land, by the Spanish Governor of Florida,
which recited, among other things, that it was made
under a royal order of the King of Spain, of 29th
March, 1815, and which was not in conformity with
the grant; but which was made in the exercise of
other powers to grant lands, which had been vested
in the governor, was not made invalid by the re-
cital of the royal order as the authority for the
grant. The grant recited, also, that it was made in
consideration of military services, and was also in
consideration of the surrender of another grant,
previously made, which surrender had been ac-
cepted by the governor. These were sufficient in-
ducements to the grant.

Id.

(lb.) 719
15. A claim for land in East Florida, granted by
Governor White to Daniel O'Hara, rejected by the
Superior Court of East Florida, and the decree of
that court affirmed.

O'Hara v. The United States,

(275) 737
16. Governor White, on the petition of Daniel
O'Hara, soliciting a grant of fifteen thousand
acres, made a decree granting "the lands solicited"
"at the place indicated," "in conformity with

the number of workers which he may have to cul-
tivate them, the corresponding number of acres
may be surveyed to him," "and that he will take
possession of said land in six months from the date
of the grant." Held, that this is a decree not
granting fifteen thousand acres as asked for; but
so much at the place where it is asked for as shall
be surveyed in conformity with the number of
workers the grantee may have to cultivate the
land: the quantity could be determined by the
regulation of the governor, made the month after
the grant, and determining the quantity of land to
be surveyed according to the number of persons in
the family of the grantee, slaves included. That
the grant was made before the date of the regula-
tion, makes no difference.
ld.

(b.) 737

20. A grant by the Spanish authorities was made of
ninety-two thousand one hundred and sixty acres
of land at New River, in Florida, in 1813; afterwards
the grantee determined to locate the grant on a
river seventy miles south of New River. The
grantee proposed erecting mills for sawing timber.
No survey was made of land at New River, and the
grantee claimed to have the grant confirmed, and
to locate the same, by survey, at the place last se-
lected. No mills were erected on the lands claimed;
nor was anything done by him under the grant, for
the purpose of using or improving the land claimed
to have been granted. Held, that the grant made
in 1813, of land at the mouth of New River, im-
posed no obligation on the government of Spain,
at the date of the Florida Treaty, in 1819, to con-
firm the title claimed by the grantee; and that
none rests on the government of the United States,
as the successor of the government of Spain, to the
rights and obligations of Spain.

The United States v. Delespine, (319) 753
21. A concession of lands by the Council at St.
Augustine, was not authorized by the laws of Spain,
relative to the granting and confirming land titles.
ld.
(Ib.) 753

22. When a grant of land is indefinite as to its lo-
cation, or so uncertain as to the place where the
lands granted are intended to be surveyed as to
make it impossible to make a survey under the
terms of the grant with certainty, the grant will
not be confirmed.

Id.

(lb.) 753

25. When certain testimonials of title, under a
Spanish grant have been admitted without excep-
tion, before the commissioners of the United States
for the adjustment of claims to lands in Florida,and
before the Superior Court in Middle Florida, with-
out objection as to the mode and form of their
proof: the Supreme Court, on an appeal, will not
interfere with the question as to the sufficiency of
the proof, or the authenticity of the acts relating
to the title, which had been admitted by the
authorities in Florida, which was the tribunal to
judge of the evidence.

The United States v. Delespine,

FLORIDA LAND CLAIMS-16.

(319) 753

1. Breward petitioned the Governor of East
Florida, intending to establish a saw-mill to saw
lumber on St. John's River, for a grant of five
miles square of land, or its equivalent; ten thou-
sand acres to be in the neighborhood of the place
designated, and the remaining six thousand acres
in Cedar Swamp, on the west side of St. John's River,
and in Cabbage Hammock, on the east side of the
river. The governor granted the land asked for,
on the condition that the mill should be built, and
the condition was complied with. On the 27th of
May, 1817, the Surveyor-General surveyed seven
thousand acres under the grant, including Little
Cedar Creek, and bounded on three sides by Big
Cedar Creek, including the mill. This grant and sur-
vey were confirmed.

The United States v. Breward,

(143) 916
2. Three thousand acres were laid off on the
northern part of the river St. John's, and east of
the Royal Road, leading from the river to St.
Mary's, four or five miles from the first survey.
This survey having been made at a place not with-
in the grant, was void; but the court held that
grantee is to be allowed to survey under the grant
three thousand acres adjoining the survey of seven
thousand acres, if so much vacant land can be
found; and patents for the same shall issue for the
land, if laid out in conformity with the decree of
the court in this case.
Id.

(lb.) 916
3. In 1819, two thousand acres were surveyed in
Cedar Swamp, west of the river St. Johns, at a place
known by the name of Sugar Town. This survey
was confirmed.

Id.

(lb.) 916
4. Four thousand acres, by survey, dated April,
1819, in Cabbage Hammock, were laid out by the
Surveyor-General. This survey was confirmed.
id.
(lb.) 916
5. By the 8th article of the Florida Treaty, all
grants of land made before the 24th of January,
1824, by His Catholic Majesty, were confirmed; but
all grants made since the time when the first pro-
posal by His Majesty for the cession of the country
was made, are declared and agreed by the treaty to
be void. The survey of five thousand acres having
been made at a different place from the land
granted, would, if confirmed, be a new appropria-
tion of so much land, and void, if it had been or-
dered by the Governer of Florida; and of course it is
void, having nothing to uphold it but the act of the
Surveyor-General.~ (Cited, 10 Peters, 309.)

916
6. In the Superior Court of East Florida, the
counsel for the claimant offered to introduce testi-
mony in regard to the survey of three thousand
acres; and the counsel of the United States with-
drew his objections to the testimony. The admis-
sion of the evidence did not prove the survey to
have been made. Proof of the signature of the
surveyor-general to the return of survey made
the survey prima facie evidence. (Cited, Mrs. Wig-
gins's Case, 14 Peters, 346.)

Id.

(lb.) 916
7. The proof of the signature of Aguilar to the
certificate of a copy of the grant by the Governor
of East Florida,authorizes its admission in evidence;
but this does not establish the validity of the con-
cession. To test the validity of the survey, it was
necessary to give it in evidence; but the survey did
not give a good title to the land.

Id.

(lb.) 916
8. The United States have a right to disprove a
survey made by the Surveyor-General.if the survey
on the ground does not correspond to the land
granted.

ld.

(Tb.) 916
9. On a petition from Pedro Miranda, stating
services performed by him for Spain, Govern-
or White, the Governor of East Florida, on the
26th November, 1810, made a grant to him of

eight leagues square, or three hundred and six-
ty-eight thousand six hundred and forty acres
of land on the waters of Hillsborough and Tampa
bays, in the Eastern District of Florida. No sur-
vey was made under this grant while Florida re-
mained a province of Spain; nor was any attempt
made to occupy or survey the land until after the
cession of Florida to the United States. In 1821, it
was alleged that a survey was made by a surveyor
of East Florida. Held, that the grant was void; no
land having been severed from the public domain
previous to the 24th January, 1818, and because the
calls of the grant are too indefinite for locality to
be given to them.

The United States v. Miranda, (153) 920
10. The settled doctrine of the Supreme Court, in
respect to Florida grants, is, that grants embracing
a wide extent of country, or with a large area of
natural or artificial boundries, and which granted
lands were not surveyed before the 24th of January,
1818, and which are without such designation as will
give a place of beginning for a survey, are not
lands withdrawn from the mass of vacant lands
ceded to the United States in Florida, and are void;
as well on that account as for being so uncertain
that locality cannot be given to them.

Id.

(Ib.) 920

11. On the 6th of April, 1816, a grant was made
by the Governor of Florida of five miles square,
or sixteen thousand acres of land, on condition that
a mill should be built. The grant of six thousand
acres was for land on Doctor's Branch, where the
mill was intended to be erected. The ten thousand
acres were granted on the northeast side, on the
lagoon of Indian River. The six thousand acres
were surveyed in 1809, on Doctor's Branch, and
the mill was built. The survey under this grant
was confirmed.

The United States v. Low et al., (162) 923
12. The survey of ten thousand acres was made in
February, 1820, by the Surveyor-General of Florida,
"northwestwardly of the head of Indian River,
and west of the prairies of the stream called North
Creek, which empties itself at the head or pond of
said river." The official return of the Surveyor-
General has acceded to it the force of a deposition.
The land granted could only be surveyed at the
place granted; if elsewhere, it would have been a
new appropriation, and therefore void, and con-
trary to the eighth article of the treaty with Spain.
ld.
(Ib) 923

13. According to the strict ideas of conforming a
survey to a location, in the United States, the sur-
vey of ten thousand acres should be located ad-
joining the natural object called for, there be
ing no other to aid and control the general
call; and therefore the head of the lagoon would
necessarily have formed one boundary. But it is
obvious, more latitude was allowed in the province
of Florida under the government of Spain. The
surveyor-general having returned that the sur-
vey was made according to the grant, and in the
absence of other contradictory proof, the claim was
confirmed.

Id.

(lb) 923

14. A grant of five miles square or sixteen
thousand acres of land, was made by the Spanish
Governor of East Florida, at the mouth of the
river Santa Lucia. The petition for the grant
stated various merits and fosses of the petitioner,
and asked the grant of five miles square, for the con-
struction of a water saw-mill. The grant was given
for the purposes mentioned, and "also paying atten-
tion to the services and other matters set forth in
the petition." No survey under the grant was made
by the Surveyor-General of Florida; but a survey
was made by a private surveyor. The survey did
not follow the calls of the grant, and no proof was
given that it was made at the place mentioned in
the grant. The survey and plat were not made ac-
cording to the established rules relative to surveys
to be made by the surveyor-general under such
grants. Nor was the plat,made with the proportion
of land on the river, required by the regulations.
The Superior Court of Florida held that the grant
having been made in consideration of services ren-
dered by the grantee, as well as for a water saw-
mill, it was valid, without the erection of the miil:
but the survey was altogether void, and of no effect.
The decree of the Superior Court of Florida, by
which the grant and survey were confirmed, was
remanded to the Superior Court of Florida; that
court to order the sixteen thousand acres granted.
to be surveyed according to the principles stated in
the opinion of the Supreme Court. It has often
been held that the authorities of Spain had the

power to grant the public domain, in accordance with their own ideas of the merits and considerations presented by the grantee; and that the powers of the Supreme Court of the United States extend only to the inquiry, whether, in fact, the grant had been made, and its legal effect when made, in cases where the law by implication intro duced a condition, or it was peculiar in its provisions. No special ordinance of Spain introduces conditions into mill grants.

(196) 935

The United States v. Hanson, 15. The certificate of a private surveyor, that he had permission from the governor of the territory to make as urvey of the land granted, is no evidence of the fact. There is a marked and wide difference in the effect of the certificate of the surveyorgeneral and of a private individual, who assumes to certify without authority. ib. (Ib.) 935 16. Instructions of 1811, as to the duties of the surveyor-general, in making surveys under grants, by the governors of the public lands of Spain. Id. (lb.) 935 17. A grant by a Spanish governor of Florida, meant not, as in the States of the United States, a perfect title; but an incipient right, which, when surveyed, required confirmation by the governor. The duty of confirmation by the acts of Congress, is disputed to the courts of justice of the United States, in execution of the treaty with Spain. Id.

(Ib.) 935 18. The same credence that was accorded to the return of the surveyor-general, by the Spanish Government, is due to it by the courts of the United States. Plats and certificates, because of the official character of the surveyor-general, have accorded to them the force and character of a deposition. lb.

(lb.) 935 19. A grant of fifteen thousand acres by the Spanish Governor of East Florida, in consideration of important services performed on behalf of the government of Spain, to George Atkinson, confirmed by the Supreme Court. By the 8th article of the Florida Treaty, no grants of land made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant. Still the power to survey, in conformity to the concessions, existed up to the change of flags.

The United States v. Clark,

(228) 946 20. Spain had the power to make grants founded on any consideration, and subject to any restrictions within her dominions. If a grant was binding on that government, it is so on the United States, the successor of Spain. All the grants of land made by the lawful authorities of the King of Spain, before the 24th of January, 1818, were, by the treaty, ratified and confirmed to the owners of the lands.

ld.

(lb.) 946 21. The grant to Atkinson was for the land he mentioned in his petition, or for any other lands that were vacant. Three surveys were made of lands within the quantity granted, not at the place specially mentioned in the grant, but at other places. Held, that these surveys were valid, notwithtanding that they were made at different place. Id. (lb.) 946

event takes place." The mill was never erected; and no sufficient reason shown for its non-erection. The court held that the concession gave no title to the land. (84) 70

The United States v. Drummond,

4. A grant of land in East Florida by the Spanish Governor, on the condition that a water saw-mill should be erected on the land, declared void; the condition of the grant not having been performed according to the terms of the grant. (85) 70 5. A concession by the Governor of East Florida, made before the Florida treaty, in consideration of services, confirmed.

The United States v. Burgevin,

The United States v. The Heirs of
Arredondo,

(88) 71 6. A concession of thirty-eight thousand acres of land was made in 1817 by the Governor of East Florida to F. M. Arredondo, in consideration of services to the crown of Spain. The petition to the governor, asking for the grant, described the situation of the land, and asks, as the survey could not be made for want of surveyors, and the surveyor appointed by the government having other occupations, could not attend, that the issuing of the title should be suspended until the plot of the land could be obtained; but that in the mean time the decree of the governor on the petition should serve the petitioner as the title. To this application the assent of the governor was given, by a decree ordering a concession in conformity with the petition. No survey was made under the concession, while Florida remained under the dominion of Spain, or at any time after the cession of the territory to the United States. The court held that want of a survey does not interfere with the title of a grantee. The land granted must be taken, as near as may be, to the place described in the petition, and cannot be taken elsewhere; and if it cannot be found there, the grantee has no claim to an equivalent: and if it shall be found to interfere with previous grants to third persons, the concession will be lessened in quantity according to the extent of the rights of third persons, and an equivalent for such diminution cannot be surveyed elsewhere. The United States v. The Heirs of F.

M. Arredondo et al.,

(133) 93 7. The acts of Congress for ascertaining claims and titles to lands in Florida, whilst they recognize patents, grants, concessions, or orders of survey, as evidence of title when lawfully made, do not permit, in case of a deficiency in the quantity, from any cause whatever, the survey to be extended on other land. Id. (lb.) 93

FORECLOSURE OF A MORTGAGE-13.

1. A decree of foreclosure of a mortgage, and of a sale, are to be considered as the final decree in the sense of a court of equity; and the proceedings on the decree are a mode of enforcing the rights ofthe creditor, and for the benefit of the debtor. I he original decree of foreclosure is final on the merits of the controversy. If a sale is made after such a decree, the defendant not having appealed as he had a right to do, the rights of the purchaser would not be overthrown or invalidated even by a reversal of the decree. Whiting et al. v. The Bank of the United States,

The United States v. Moses E. Levy, (81) 68 2. The court refused to allow a survey of land to be made to make up for a deficiency in the survey of fourteen thousand five hundred acres, in consequence of part of the land included therein being covered with water, and being marshes. Even if a survey had not been made under the concession, it would not be competent for the Superior Court of East Florida, or for the Supreme Court, to designate a new location varying from the original concession as any such variation would be equivalent to a new grant. ld. (Ib.) 68 3. A concession was made by the Governor of Florida, before Florida was ceded to the United States, on condition that the grantee should erect a water saw-mill," and with the precise condition, that until he executes the said machinery, the grant to be considered void, and without effect, until that

1d.

FOREIGN ATTACHMENT—13.

lb. 33

An attachment commenced, and conducted to a conclusion before the institution of a suit against the debtor in a court of the United States, may be set up as a defense to the suit; and the defendant would be prohibited pro tanto under a recovery had by virtue of the attachment, and could plead such recovery in bar. So, too, an attachment pending in a State court, prior to the commencement of a suit in the court of the United States, may be pleaded in abatement. The attachment of the debt in such case in the hands of the defendant, would fix it there, in favor of the attaching creditors, and the defendant could not afterwards pay it over to the plaintiff. The attaching creditor would, in such a case, acquire a lien on the debt binding on the defendant, and which the courts of all other governments, if they recognize such proceedings at all,

1. The statute of Mississippi, taking away the
right to a writ of error in the case of a forthcoming
bond, forfeited, can have no influence whatever in
regulating writs of error to the Circuit Court of the
United States. A rule of court, adopting the stat-
ute as a rule of practice, would, therefore, be void.
Amis v. Smith,
(303) 973
2. Regarding the forthcoming bond as part of the
process of execution, a refusal to quash the bond
is not a judgment of the court, and much less a final
judgment; and therefore no writ of error lies in
such a case.
ld.

FRAUD-13.

(lb.) 973

1. A bill was filed in the Circuit Court of the South-
ern District of New York, praying that a contract
for the purchase and sale of a portion of a tract of
land in Goochland county, in the State of Virginia,
on which there was a gold mine, should be rescind-
ed. The purchaser alleged fraudulent misrepresen-
tations as to the gold mine,and other arts of the seli-
er, by which he was induced to make the purchase.
The court affirmed the decree of the Circuit Court
of the Southern District of New York, by which

the contract was ordered to be rescinded.

Smith v. Richards,

(26) 42
2. It is an ancient and well established principle,
that whenever suppressio veri, or suggestio falsi, oc-
cur, and more especially both together, they afford
sufficient ground to set aside any release or con-

veyance.

ld.

(Ib.) 42
3. The party selling property must be presumed
to know whether the representation which he makes
of it is true or false. If he knows it to be false, that
is fraud of the most positive kind; but if he does
not know it, then it can only be from gross negli-
gence: and, in contemplation of a court of equity,
representations founded on a mistake resulting
from such negligence, are fraud. The purchaser
confides in them upon the assumption that the own-
er knows his own property, and truly represents it.
And it is immaterial to the purchaser whether the
misrepresentation proceeded from mistake or
fraud. The injury to him is the same, whatever
may have been the motives of the seller. The mis-
representations of the seller of property,to author-
ize the rescinding of a contract of sale by a court
of equity, must be of something material, consti-
tuting an inducement or motive to purchase, and
by which he has been misled to his injury. It must
be in something in which the one party places a
known trust and confidence in the other.
Id.
(lb.) 42
4. Whenever a sale is made of property not pres-
ent, but at a remote distance, which the seller
knows the purchaser has not seen, but which he
buys upon the representation of the seller, relying
on its truth; then the representation in effect
amounts to a warranty: at least the seller is bound
to make good the representation.

Id.

(lb.) 42
5. A liberal construction should be given to the
clause of the Virginia statute for the suppression
of fraud. This is the well established rule in the
construction of the statute of Elizabeth, which the

first section of the Virginia statute substantially

adopts.

The Bank of the United States v. Lee, (107) 81
6. If A sells or conveys his land or slaves to B, and
then produces to another his previous paper title,
and obtains credit on the goods or lands, by pledg-
ing them for money loaned, he is guilty of fraud;
and if the true owner stands by, and does not make
his title known, he will be bound to make good the
contract, on the principle that he who holds his
peace when he ought to have spoken, shall not be
heard now that he should be silent. He is deemed,
in equity, a party to the fraud.

Id.

FRAUD-14.

(Ib.) 81

1. If there be any one ground upon which a court
of equity affords relief, it is an allegation of fraud,
proved or admitted.

Atkins v. Dick & Company,
(114) 378
2. Courts of equity will permit independent agree-
ments which go to show a deed on its face absolute,

was intended only as a mortgage.to be set up against
the express terms of the deed, only on the ground of
fraud. Considering it a fraudulent attempt in the
mortgagee, contrary to his own express agreement
to convert a mortgage into an absolute deed. And
it is equally a fraud on the part of a debtor, to at-
empt to convert his own contract as principal, into
that of a surety only.

Sprigg v. The Bank of Mount Pleas-
FRAUD-15.

(201) 419

ant,
Fraud will vitiate any, even the most solemn
transactions; any asserted title founded upon it, is
utterly void.

The United States v. The Amistad, (520) 826
FREIGHT-13.

The freight of a vessel totally lost by being run
on shore for her preservation and that of the crew
and cargo, ought to be allowed to the owner of the
vessel, as the subject of general average; the cargo
of the vessel being saved by the stranding.
The Columbian Insurance Company
of Alexandria v. Ashby and Stribling
et al.,

FUGITIVES FROM LABOR-16.

(331) 186

1. It is historically well known that the object of
the clause in the Constitution of the United States,
relating to persons owing service and labor in one
State escaping into other States, was to secure to
the citizens of the slaveholding States the complete
right and title of ownership in their slaves, as prop-
erty, in every State in the Union into which they
in servitude. The full recognition of this right and
might escape from the State where they were held
title was indispensable to the security of this spe-
cies of property in all the slaveholding States; and
indeed was so vital to the preservation of their do-
mestic interests and insitutions, that it cannot be
doubted that it constituted a fundamental article,
without the adoption of which the Union could
not have been formed. Its true design was to guard
against the doctrines and principles prevailing in
the non-slaveholding States, by preventing them
from intermeddling with or obstructing or abolish-
ing the rights of the owners of slaves.

Prigg v. The Commonwealth of Penn-
sylvania,

(539) 1060
2. The owner of a fugitive slave has the same
right to seize and take him in a State to which he
has escaped or fled, that he bad in the State from
which he escaped: and it is well known that this
right to seizure or recapture is universally acknowl-
edged in all the slaveholding States. The court have
not the slightest hesitation in holding, that under
and in virtue of the Constitution, the owner of the
slave is clothed with the authority in every State
of the Union, to seize and recapture his slave,
wherever he can do it without any breach of the
peace, or illegal violence. In this sense, and to this
extent, this clause in the Constitution may prop-
erly be said to execute itself, and to require no aid
from legislation, State or national.

ld.

(lb.) 1060
3. The Constitution does not stop at a mere an-
nunciation of the rights of the owner to seize his
absconding or fugitive slave, in the State to which
he may have fled. If it had done so, it would have
left the owner of the slave, in many cases, utterly
without any adequate redress.

ld.

(lb.) 1060
4. The Constitution declares that the fugitive
slave shall be delivered up on claim of the party to
whom service or labor may be due. It is exceeding-
ly difficult, if not impracticable, to read this lan
guage, and not to feel that it contemplated some
further remedial redress than that which might be
administered at the hand of the owner himself. "A
claim" is to be made.

Id.

(Ib.) 1060

5. "A claim," in a just juridical sense, is a demand
of some matter as of right, made by one person
upon another to do or to forbear to do some act or
thing as a matter of duty. It cannot well be doubted,
that the Constitution requires the delivery of the
fugitive" on the claim" of the master: and the nat-
ural inference certainly is, that the national gov-
ernment is clothed with the appropriate authority
and functions to enforce it. The fundamental prin-
ciple applicable to all cases of this sort would seem
to be, that where the end is required, the means
are given; and where the duty is enjoined, the abil
ity to perform it is contemplated to exist on the
part of the functionaries to whom it is instrued.
(lb) 1060

Id.