militia of that State, neglecting
or refusing to serve, when
called into actual service, in
pursuance of any order or re-
quisition of the President of the
United States, shall be liable to
the penalties defined in the act
of Congress of the 28th of Fe-
bruary, 1795, c. 277. or to any
penalty which may have been
prescribed since the date of
that act, or which may hereaf-
ter be prescribed by any law of
the United States, and also pro-
viding for the trial of such de-
linquents by a State Court Mar-
tial, and that a list of the delin-
quents fined by such Court
should be furnished to the Mar-
shal of the United States, &c.
and also to the Comptroller of
the Treasury of the United
States, in order that the fur-
ther proceedings directed to be
had thereon by the laws of the
United States might be comple-
ted,) is not repugnant to the
constitution and laws of the
United States. Houston v.
Moore,
2. The powers granted to Con-
gress are not exclusive of simi-
lar powers existing in the States,
unless where the constitution
has expressly in terms given an
exclusive power to Congress,
or the exercise of a like power
is prohibited to the States, or
there is a direct repugnancy or
incompatibility in the exercise
of it by the States. Id.
3. The example of the first class
is to be found in the exclusive
legislation delegated to Con-
gress over places purchased by
the consent of the Legislature
of the State in which the same
shall be, for forts, arsenals,
dock-yards, &c.; of the second

1. 12

49

class, the prohibition of a State
to coin money or emit bills of
credit; of the third class, the
power to establish an uniform
rule of naturalization, and the
delegation of admiralty and ma-
ritime jurisdiction. Id. 49
4. In all other classes of cases, the

States retain concurrent autho-
rity with Congress. Id. 49
5. But in cases of concurrent au-
thority, where the laws of the
States and of the Union are in
direct and manifest collision on
the same subject, those of the
Union being the supreme law
of the land, are of paramount
authority, and the State laws,
so far, and so far only, as such
incompatibility exists, must ne-
cessarily yield. Id.

49
6. The act of the 3d of March,

1819, c. 76. s. 5., referring to
the law of nations for a defini-
tion of the crime of piracy, is a
constitutional exercise of the.
power of Congress to define and
punish that crime. United States
v. Smith,
153.157
7. Congress has authority to im-
pose a direct tax on the District
of Columbia, in proportion to
the census directed to be taken
by the constitution. Loughbo-
rough v. Blake,
317
8. The power of Congress to lay

10.

and collect taxes, duties, &c.
extends to the district of Colum
bia, and to the territories of the
United States, as well as to the
States. Id.

318
9. But Congress are not bound to
extend a direct tax to the dis-
trict and territories. Id. 322
The constitutional provision, that
direct taxes shall be appor-
tioned among the several States,
according to their respective
numbers, to be ascertained by a

census, was not intended to re-
strict the power of imposing di-
rect taxes to States only. Lough-
borough v. Blake,
319
11. The power of Congress to ex-
ercise exclusive jurisdiction in
all cases whatsoever within the
District of Columbia, includes
the power of taxing it. Id. 324
12. The present constitution of the

United Stases did not commence
its operation until the first Wed-
nesday in March, 1789, and the
provision in the constitution,
that "no State shall make any
law impairing the obligation of
contracts," does not extend to
a State law enacted before that
day, and operating upon rights
of property vested before that
time. Owings v. Speed, 420,

D

DEED.

See LOCAL LAW, 1. 4. 15, 16.

E

EVIDENCE.

421

1. On an indictment for piracy, the
national character of a merchant
vessel of the United States may
be proved without the produc-
tion of the certificate of regis-
try, or evidence that it was
seen on board. United States v.
Furlong et al.
184, 199

2. Where a check was drawn by a

person who was the Cashier of
an incorporated Bank, and it
appeared doubtful upon the face
of the instrument, whether it
was an official or private act,
parol evidence was admitted to
show that it was a private act.
Mechanics' Bank v. Bank of Co-
lumbia,
326. 336
3. The acts of agents do not de-
rive their validity from profess-
ing on the face of them to have
been done in the exercise of
their agency; but the liability
of the principal depends upon
the facts, 1st. That the act was
done in the exercise, and, 2dly.
Within the limits of the power
delegated: And in ascertaining
these facts as connected with
the execution of written instru-
ments, except deeds, parol tes-
timony is admissible. Id. 337
4. The books of a corporation, eş-
tablished for public purposes,
are evidence of its acts and pro-
ceedings. Owings v. Speed,
420. 423

See BILLS OF EXCHANGE, 1.

LOCAL LAW, 11, 12. 15, 16, 17,
18, 19, 20.

PRIZE, 3. 5. 11.

G

GRANT.

See LOCAL LAW, 4. 9, 10. 13. 15,
16, 17.

L

LIMITATION OF ACTIONS.

See LOCAL LAW, 2, 3.

LOCAL LAW.

1. Under the laws of Tennessee,
where lands are sold by a sum-
mary proceeding for the pay-
ment of taxes, it is essential to
the validity of the sale and of
the deed made thereon, that
every fact necessary to give the
Court jurisdiction should ap-
pear upon the record. M'Clung
v. Ross,
116. 119
2. Under the statute of limitations
of Tennessee, the running of
the statute can only be stopped
by actual suit, if the party
claiming under it has peaceable
possession for seven years. But
such possession cannot exist if
the party having the better right.
takes actual possession in pur-
suance of his right. Id. 121
3. One tenant in common may oust
his co-tenant, and hold in seve-
ralty; but a silent possession,
unaccompanied by any act a-
mounting to an ouster, or giv-
ing notice to the co-tenant that
his possession is adverse, can-
not be construed into an adverse
possession. Id.
124
4. The statute of limitations of Ten-
nessee does not, like other sta-
tutes of limitation, protect a
mere naked possession, but its
operation is limited to a posses-
sion acquired and held under a
grant, or a deed founded on a
grant. Id. Note a,
121
5. Previous to the year 1775, H.
S. of Virginia, cohabited with
A. W., and had by her the ap-

pellants, whom he recognised
as his children. In July, 1775,
he made his will, which was
duly proved after his decease,
in which he described them as
the children of himself, and of
his wife A., and devised the
whole of his property to them
and their mother. In June,
1776, he was appointed a Colo-
nel in the Virginia line, upon
the continental establishment,
and died in the service, having,
in July, 1776, intermarried with
the mother, and died, leaving
her pregnant with a child who
was afterwards born, and named
R. S. After the death of H. S.,
and the birth of his posthumous
son, a warrant for a tract of
military lands was granted by
the State of Virginia to the post-
humous son R. S., who died
in 1796, in his minority, with-
out wife or children, and with-
out having located or disposed
of the warrant. His mother
also died before 1796. Held,
that the children of H. S. were
not entitled to the lands, as de-
visees under his will, under the
act of Assembly; nor did the
will so far operate, as to render
them capable of taking under
the act, as being named his le-
gal representatives in the will.
Stevenson's heirs v. Sullivant,
207.255
6. The appellants were not legiti
mated by the marriage of H. S.
with their mother, and his re-
cognition of them as his chil-
dren, under the 19th sec. of the
act of descents of Virginia, of
1785, which took effect on the
1st of January, 1787, and pro-
vides, that "where a man, hav-
ing by a woman one or more
children, shall afterwards inter-

257

marry with such woman, such
child or children, if recognised
by him, shall be thereby legiti-
mated." Id.
7. The appellants were not, as il-
legitimate children of H. S. and
A. W., capable of inheriting
from R. S. under the 18th sec.
of the same act of descents,
which provides that, "In mak-
ing title by descent, it shall be
no bar to a party that any ances-
tor, through whom he derives his
descent from the intestate, is,
or hath been, an alien. Bas-
tards also shall be capable of in-
heriting, or of transmitting in-
heritance, on the part of their
mother, as if they had been law-
fully begotten of such mother."

260

Id.
8. The following entry is invalid
for want of that certainty and
precision required by law :
"William Perkins and William
Hoy enter 6,714 acres of land
on a treasury warrant, No.
10,692, to join Lawrence
Thompson and James M Mil-
lan's entry of 1,000 acres that
is laid on the adjoining ridge,
between Spencer's creek and
Hingston's fork of Licking, on
the east, and to run east and
south for quantity." The en-
try referred to in the foregoing
was as follows: "9th of
December 1782, Lawrence
Thompson and James M Millan,
assignee of Samuel Baker, en-
ter 1,000 acres on a treasury
warrant, No. 4,222, on the di-
viding ridge between Hingston's
fork of Licking, and Spencer's
creek, a west branch of said fork,
to include a large pond, in the
centre of a square, and a white
oak tree marked X, also an elm
tree marked VS, near the side

of the pond." Perkins et al. v.
Ramsey,
269
9. There are cases in which a grant

10.

11.

303

is absolutely void; as where the
State has no title to the thing
granted, or where the officer
had no authority to issue the
grant, &c. In such cases, the
validity of the grant is necessa
rily examinable at law. Polk's
Lessee v. Wendell, 293. 303.
A grant raises a presumption
that every prerequisite to its
issuing has been complied with,
and a warrant is evidence of the
existence of an entry; but
where the entry has never in
fact been made, and the warrant
is forged, no right accrues un-
der the act of North Carolina
of 1777, and the grant is void.
Id.
Where a party, in order to prove
that there were no entries to
authorize the issuing of the
warrants, offered to give in evi-
dence certified copies of war-
rants from the same office, of
the same dates and numbers,
but to different persons, and for
different quantities of land:
Held, that this was competent
evidence to prove the positive
fact of the existence of the en-
tries specified in the copies;
but that in order to have a ne-
gative effect in disproving the
entries alleged to be spurious,
the whole abstract ought to be
produced in Court, or inspected
under a commission, or the
keeper of the document ex-
amined as a witness, from which
the Court might ascertain the
fact of the non-existence of the
contested entries. Id. 310
12. In such a case, certificates from
the secretary's office of North
Carolina, introduced to prove,

that on entries of the same
dates with those alleged to be
spurious, other warrants issued,
and other grants were obtained
in the names of various indivi-
duals, but none to the party
claiming under the alleged spu-
rious entries, is competent cir-
cumstantial evidence to be left
to the jury. In such a case,
parol evidence that the warrants
and locations had been rejected
by the entry-taker as spurious,
is inadmissible. Id... 311
13. It seems, that whether a grant be

absolutely void, or voidable only,
a junior grantee is not, by the
law of Tennessee, permitted to
avail himself of its nullity as
against an innocent purchaser
without notice. Id.
311
14. The 17th section of the act, in-
corporating the Mechanics' Bank
of Alexandria, providing, "that
all bills, bonds, notes, and every
other contract or engagement
on behalf of the corporation,
shall be signed by the President,
and countersigned by the ca-
shier; and the funds of the cor-
poration shall, in no case, be li-
able for any contract or engage-
ment, unless the same shall be
signed and countersigned as
aforesaid," does not extend to
contracts, and undertakings im-
plied in law. Mechanics' Bank
v. Bank of Columbia, 326.

335
15. It is essential to the validity of a
grant, that the thing granted
should be so described as to be
capable of being distinguished
from other things of the same
kind. But it is not necessary
that the grant itself should con-
tain such a description, as with-
out the aid of extrinsic testi-
mony to ascertain precisely what

is conveyed. Blake v. Doherty,
359.362.
Natural objects called for in a
grant may be proved by testi-
mony, not found in the grant,
but consistent with it. Id. 362
The following description, in a
patent of the land granted, is
not void for uncertainty, but
may be made certain by extrin-
sic testimony: "A tract of land
in our middle district, on the
west fork of Cane creek, the
waters of Elk river, beginning
at a hiccory, running north 1000
poles to a white oak; then east,
800 poles, to a stake; thence
west 800 poles to the beginning,
as per plat hereunto annexed
doth appear." Id.
389
The plat and certificate of sur-
vey annexed to the patent, and a
copy of the entry on which the
survey was made, are admissi-
ble in evidence for this purpose.
Id.

364

A general plan made by authori-
ty, conformably to an act of the
local legislature, may also be
submitted, with other evidence,
to the jury, to avail quantum va-
lere potest, in ascertaining boun-
dary. Id.
364

But a demarcation, or private
survey, made by direction of a
party interested under the grant,
is inadmissible evidence, be-
cause it would enable the
grantee to fix a vagrant grant
by his own act. Id.
365
The boundary of the State of
Kentucky extends only to low
water mark on the western side
of the river Ohio; and does
not include a peninsula, or isl-
and, on the western or north
western bank, separated from
the main land by a channel or
bayou, which is filled with water