1. In the ratification by the King of Spain of the Treaty by which Florida was ceded to the United States, it was admitted that certain grants of land in Florida, amongst which was one to the Duke of Alagon, were annulled and declared void.

2. A written declaration, annexed to a treaty at the time of its ratification, is as obligatory as if the provision had been inserted in the body of the Treaty itself.

De et al v. Braden,

(635) 1090 3. Whether or not the King of Spain had power, according to the Constitution of Spain, to annul this grant, is a political and not a judicial question, and was decided when the Treaty was made and ratified. ld.

(lb.) 1090 4. A deed made by the duke to a citizen of the United States, during the interval between the signature and ratification of the Treaty, cannot be recognized as conveying any title whatever. The land remained under the jurisdiction of Spain until the annulment of the grant. Id. (lb.) 1090

Day v Woodworth,

(363) 181 2. The suit being brought by the owner of a mill dam below, against the owners of a mill above, for forcibly taking down a part of the dam, upon the allegation that it injured the mill above, it was proper for the court to charge the jury, that, if they found for the plaintiff upon the ground that his dam caused no injury to the mill above, they should allow, in damages, the cost of restoring so much of the dam as was taken down, and compensation for the necessary delay of the plaintiff's mill; and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred, for counsel fees, and the pay of engineers in making surveys, &c.

ld.

(lb.) 181 3. But if they should find for the plaintiff, on the ground that the defendants had taken down more of the dam than was necessary to relieve the mill above, then, they would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess; but not anything for counsel fees or extra compensation to engineers, unless the taking down of such excess was wanton and malicious.

Id.

(Tb.) 181 4. In actions of trespass, and all actions on the case for torts, a jury may give exemplary or vindictive damages, depending upon the peculiar circumstances of each case. But the amount of counsel fees, as such, ought not to be taken as a measure of punishment, or a necessary element in its infliction. ld. (lb.) 181 (lb.) 181 6. Whether the verdict would carry costs or not,

5. The doctrine of costs explained. ld.

was a question with which the jury had nothing to do. Id. (lb.) 181

7. In an action of trespass, for forcibly invading a plantation, carrying off some slaves, and frightening others away, it was proper for the plaintiff to give in evidence the consequental damages which resulted to his wood and corn. McAfee v. Crofford, (447) 217 8. It was proper, also, to allow the defendant to the plantation, as principal, and himself as surety, give in evidence a judgment against the owner of and his own payment of that judgment. It was allowable, both as an explanation of his motives, and to show how much he had paid; both reasons concurring to mitigate the damages. Id.

(lb.) 217

10. Evidence was also admissible to show that the surety had not been compelled to pay the debt, by showing that the creditor had been enjoined from collecting it. This was admissible, in order to rebut the evidence previously offered on the other side. Id. (lb.) 217

11. It was proper for the court to charge the jury that, in assessing damages, they had a right to take into consideration all the circumstances. Id. (Ib) 217

TRUSTEES-16.

1. There were two trustees of real and personal estate for the benefit of a minor. One of the trustees was also administrator de bonis non upon the estate of the father of the minor, and the other trustee was appointed guardian to the minor.

2. When the minor arrived at the proper age, and the accounts came to be settled, the following rules ought to have been applied:

3. The trustees ought not to have been charged with an amount of money, which the adininistrator trustee had paid himself as commission. That item was allowed by the Orphans' Court, and its correctness cannot be reviewed, collaterally, by another court.

Barney v. Saunders,

(535) 1047

4. Nor ought the trustees to have been charged with allowance made to the guardian trustee. The guardian's accounts also were cognizable by the Orphans' Court. Having power under the will to receive a portion of the income, the guardian's receipts were valid to the trustees.

Id.

(Tb.) 1047

5. The trustees were properly allowed and credited by five per cent. on the principal of the personal estate, and ten per cent. on the income. 1d.

(lb.) 1047 6. Under the circumstances of this case, the trustees ought not to have been charged upon the principal of six months' rests and compound interest.

ld.

(lb.) 1047

1. On 6th November, 1836, W. F. Hamilton, William V. Robinson, and wife, by deed, conveyed to the United States "the right and privilege to use, divert and carry away from the fountain spring, by which the woolen factory of said Hamilton and Robinson is now supplied, so much water as will pass through a pipe or tube of equal diameter with one that shall convey the water from the said spring, upon the same level therewith, to the factory of the said grantors, and to proceed from a common cistern or head to be erected by the said United States, and to convey and conduct the same, by tubes or pipes, through the premises of the said grantors in a direct line, &c., &c.

2. The distance to which the United States wished to carry their share of the water being much greater than that of the other party, it was necessary, according to the principles of hydraulics, to lay down pipes of a larger bore than those of the other party, in order to obtain one half of the

1. James Bosley, in-his will, after sundry specific devises and bequests, devised and bequeathed all his lands and other real estate in Baltimore, Cecil, and Alleghany counties, in Maryland, and also in Florida, and his house and lot in Santa Croix, and all the real estate he might have elsewhere, to his wife Elizabeth, her heirs and assigns, in trust to sell the same and divide the net proceeds thereof, with all the residue of his estate, equally between herself and the children of his brother.

10. But the first will, before it was known that he had made the others, was probated by Mr. Jefferson, in Virginia, and when Mr. Jefferson learned that the General had made other wills, he transferred the fund to the Orphans' Court of the District of Columbia. The Orphans' Court managed the fund for some time, and then Benjamin L. Lear was appointed the administrator of Koseiusko, with the will annexed. He died, leaving a will, and George Bomford one of his executors. Bomford qualified as such, and afterwards became the administrator of Kosciusko de bonis non. He took into his possession, as executor, the estate of Lear, and also the funds of Kosciusko, which had been administered by Lear, and first made his return to the Orphans' Court of the administered funds of Kosciusko, as executor of Lear. Afterwards they were returned by him to the Orphans' Court, as administrator de bonis non of Kosciusko. The Orphans' Court deeming that his sureties as admintrator de bonis non of Kosciusko, were insufficient, or that they were not liable for any waste of them, on account of the funds having been received by him as executor of Lear, and not as administrator de bonis non, called upon him for other sureties, under the Act of Congress of the 20th February, 1846. He complied with the call, and gave as sureties, Stott, Carrico, and George C. Bomford, and Gideon, Ward, and Smith.

ld.

(Ib.) 472

11. The original bonds of Bomford were given to the Orphans' Court, under the law of Maryland, which prevailed without alteration in that part of the District of Columbia which had been ceded by Maryland, until Congress passed the Act of the 20th February, 1846. The defendant, Stott, Carrico, and George C. Bomford, and Smith, Ward, and Gideon, became the sureties of Bomford, as administrator de bonis non of Kosciusko, under the Act of 20th February, 1846.

Id.

(lb.) 472

12. In the State of Maryland, if an executor or administrator changes any part of an estate from what it was, into something else, it is said to be administered. If an administrator de bonis non possesses himself of such changed estate, of whatever kind it may be, and charges himself with it as assets, his sureties to his original bond, as admistrator de bonis non, are not liable for his waste of

them. They are only liable for such assets of the deceased as remain in specie, unadministered by his predecessor, in the administration. Such is the law of Maryland, applicable to the sureties of Bomford, in the bond given when he was appointed administrator de bonis non of Kosciusko.

Id.

(Ib.) 472 13. But when other sureties are called for by the Orphans' Court, under the third section of the Act of February 20, 1846, and are given, they do not bear the same relation to the administrator that his original sureties did, and they will be bound for the waste of their principal to the amount of the estate, or funds which he has charged himself by his return to the Orphans' Court, as administrator de bonis non, when it called for additional sureties, and for such as the administrator may afterwards receive. Id. (Ib.) 472

14. The bonds taken by the Orphans' Court in this case, were properly taken under the Act of the 20th February, 1846. Id. (lb.) 472 15. General Kosciusko's olographic will, of 1816, contains a revoking clause of all other wills previously made by him, and not having disposed of his American funds in that will, nor in the will of 1817, he died intestate as to such funds. The second article in the will of 1817, "Je Légue tous mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur Zavier Zeltner, les homme ce dessus,' record 105, is not a residuary bequest to them of the rest of the estate, not specifically disposed of in the wills of 1816 and 1817. Id.

(Ib.) 472 16. General Kosciusko was sojourning in Switzerland when he died, but was domiciled in France, and had been for fifteen years. ld.

(Ib.) 472 17. His declarations are to be received as proof that his domicil was in France. Such declarations have always been received, in questions of domicil, in the courts of France, in those of England, and in the courts of the United States.

Id.

(lb.) 472 18. The presumption of law is, that the domicil of origin is retained, until residence elsewhere has been shown by him who alleges a change of it. But residence elsewhere repels the presumption, and casts upon him who denies it to be a domicil of choice, the burden of disproving it. The place of residence must be taken to be a domicil of choice, unless it is proved that it was not meant to be a principal and permanent residence. Contingent events, political or otherwise, are not admissible proofs to show, where one removes from his domicil of origin for a residence elsewhere, that the latter was not meant to be a principal and permanent residence. But if one is exiled by authority from his domicil of origin, it is never presumed that he has abandoned all hope of returning back. The abandonment, however, may be shown by proof. General Kosciusko was not exiled by authority. He left Poland voluntarily, to obtain a civil status in France, which he conscientiously thought he could not enjoy in Poland, whilst it continued under a foreign dominion.

ld.

(lb.) 472 19. Personal property, wherever it may be, is to be disturbed in case of intestacy, according to the law of the domicil of the intestate. This rule may be said to be a part of the jus gentium. ld. (Ib.) 472 20. What that law is when a foreign law applies, must be shown by proof of it, and in the case of written law, it will be sufficient to offer, as evidence, the official publication of the law, certified satisfactorily to be such. Unwritten foreign laws must be proved by experts. There is no general rule for authenticating foreign laws in the courts of other countries, except this, that no proof shall be received "which presupposes better testimony behind, and attainable by the party." They may be verified by an oath, or by an exemplification of a copy under the great seal of the State or nation whose law it may be, or by a copy, proved to be a true copy by a witness who has examined and compared it with the original, or by the certificate of an officer authorized to give the law, which certificate must be duly proved. Such modes of proof are not exclusive of others, especially of codes and accepted histories of the law of a country. See, also, the cases of Church v. Hubbart, in 2 Cranch, 181, and Talbot v. Seeman, in 1 Cranch, 7. In this case, the Code Civil of France, with this indorsement," Les Garde des Sceaux de France a la Cour

Supreme des Etats Unis," was offered as evidence to prove that the law of France was for the distribution of the funds in controversy. This court ruled that such indorsement was a sufficient authentication to make the Code evidence in this case, and in any other case in which it may be offered. By that Code, the complainants named in this suit as the collateral relations of General Kosciusko, are entitled to receive the funds in controversy, in such proportions as are stated in the mandate of this court to the court below. Id. (lb.) 472

21. The documentary proofs in this cause, from the Orphans' Court, of the genealogy of the Kosciusko family, and of the collateral relationship of the persons entitled to a decree, and also of the wills of Kosciusko, are properly in evidence in this suit. Id. (Ib.) 472 22. The record from Grodno is judicial; not a judgment inter partes, but a foreign judgment in rem, which is evidenced of the facts adjudicated against all the world. (lb.) 472

Id.

23. A will executed in 1777, which devised certain lands in Maine to trustees and their heirs, to the use of Richard (the son of the testator) for life, remainder for his life, in case of forfeiture, to the trustees, to preserve contingent remainders; remainder to the sons of Richard, if any, as tenants in common in tail, with cross remainders; remainder to Richard's daughter, Elizabeth, for life; remainder to trustees, to preserve contingent remainders during her life; remainder to the sons of Elizabeth in tail-did not vest the legal estate in fee simple in the trustees. The life estate of Richard, and the contingent remainders limited thereon, were legal estates. (488) 510

Webster v. Cooper,

24. No duties were imposed on the trustees which could prevent the legal estate in these lands from vesting in the cestuis que use; and although such duties might have been required of them relating to other lands in the devise, yet this circumstance would not control the construction of the devise as to these lands.

Id.

(Ib.) 510

28. In 1848, the Legislature of Maine passed an Act declaring that no real or mixed action should be commenced or maintained against any person in possession of lands, where such person had been in actual possession for more than forty years, claiming to hold the same in his own right, and which possession should have been adverse, open, peaceable, notorious, and exclusive. This Act was passed two years after the suit was commenced. Id. (lb.) 510

29. The effect of this Act was to make the seisin of the occupant during the lifetime of Elizabeth, adverse against her son, when he had no right of possession.

Id.

(Id.) 510

30. This act, which thus purported to take away property from one man and vest it in another, was contrary to the constitution of the State of Maine, as expounded by the highest courts of law in that State. And as this court looks to the decisions of the courts of a state to explain its statutes, there is no reason why it should not also look to them to expound its constitution.

Id.

(Tb.) 510