« ZurückWeiter »
LANDS, PUBLIC, (Continued.) 16. Grants from the British government, as well as those of France and Spain, are
equally within this restriction. Ibid. 17. On the 20th of May, 1826, Congress passed an act (4 Stat. at Large, 179,)
giving school lands to such towaships, in the various land districts of the United States, as had not been before provided for, which were to be selected for such townships by the Secretary of the Treasury, out of any unappropriated public lands, within the land district where the township was situated for
which the selection was made.' Campbell et al. v. Doe, 244. 18. The Secretary of the Treasury, through the Land Office, directed the Registers
to make selections and return lists thereof, to be submitted to him for his ap
probation. Ibid. 19. Under this direction, the land in question was selected and reserved from sale.
Ibid. 20. Afterwards, the Register withdrew the selection, by authority of the Commis.
sioner of the Land-Office, and permitted a person to enter and take it up, this person knowing the circumstances under which it had been reserved from sale.
Ibid. 21. Finally, the Secretary of the Treasury selected the land in question, under the
authority given to him by the act of 1826. Ibid. 22. This selection was good, and conferred a title, overruling the intermediate entry.
Ibid. 23. In 1795, Baron de Carondelet, the Governor-General of Louisiana, made a grant
of land on the Mississippi River, upon condition that a road and clearing should be made within one year, and an establishment made on the land
within three years. Heirs of De Villemont v. United States, 261. 24. Neither of these conditions was complied with, nor was possession taken under
the grant, until arter the cession of the country to the United States. Ibid. 25. The excuses for these omissions, namely, that the grantee was commandant at the
post of Arkansas, and that the Indians were hostile, are not satisfactory, be
cause the grantce must have known these circumstances when he obtained the 26. According to the principles established in the preceding case of Glenn and
Thruston v. The United States, the Spanish authorities would not have con
firmed this grant, neither can this court confirm it. Ibid. 27. Moreover, in this case, the land claimed cannot be located by a survey. Ibid. 28. In 1796, when Delassus was commandain of the port of New Madrid, he exer
cised the powers of subdelegate, and had authority under the instructions of the Governor-General of Louisiana, to muke conditional grants of land. Glenn
et al. v. United States, 250. 29. He made a grant to Clamorgan, who stipulated, upon his part, that he would
introduce a colony from Canada, for the purpose of cultivating hemp and
making cordage. Ibid. 30. This obligation he entirely failed to perform. Ibid. 31. By the laws and ordinances of Spanish colonial government, (which this court
bound, under the act of 1844, to adopt, as one of their rules of decision,) this condition had to be performed before Clamorgan could become possessed
of a perfect title. Ibid. 32. The difference between this case and that of the Arredondo explained. Ibid. 33. If the Spanish Governor would have refused to complete the title, this court,
acting under the laws of Congress, must also decline to confirm it. Ibid. 34. After the cession of the province of Louisiana to the United States, Clamorgan
could not legally have taken any steps to fulfil his condition. He was forbidden by law. By the treaty of cession, no particular time was allowed for grantees to complete their imperfect grants. It was left to the political department
of the government, and Congress accordingly acted upon the subject. Ibid. 35. The 3d day of March, 1804, was the time fixed by Congress, and the grant must
now be iudged of as it stood upon that day. Ibid. LIEN. 1. By the laws of Mississippi, deeds of trust and mortgages are valid, as against
creditors and purchasers, only from the time when they are recorded. Taylor
v. Doe, 288. 2. A judgment is a lien from the time of its rendition. Ibid. 3. Therefore, where a judgment was rendered, in the interval between the execution
and recording of a deed, it was a lien upon the land of the debtor. Ibid.
LIEN, (Continued.) 4. A fieri fucius, being issued upon this judgment, was levied upon the land; but,
before the issuing of a venditioni erponas, the debtor died. Ibid. 5. It was not necessary to revive the judgment by a scire facias; but the sheriff
who had thus levied upon the land could proceed to sell it, under a venditioni erponas; and a purchaser under this sale could not be ejected by a claimant
under the deed given by the debtor. Ibid. 6. Rcal property, in Louisiana, was bound by a judicial mortgage. Fowler v. Hart,
373. 7. The owners of the property then took the benefit of the Bankrupt Act of the
United States. Ibid. 8. A creditor of the bankrupt then filed a petition against the assignce, alleging
that he had a niortgage upon the saine property, prior in date to the judicial mortgaye, but that, by some error, other property had been named, and pray, ing to have the error corrected. Of this proceeding the judgment creditor had
no notice. Ibid. 9. The court being satisfied of the error, ordered the mortgage to be reformed, and
thus gave the judgment creditor the second lien instead of the first; and then decreed that the property should be sold free of all incumbrances. Of this proceeding, and also of the distribution of the proceeds of sale, the judgment
creditor had notice, but omitted to protect liis rights. Ibid. 10. In consequence of this neglect, he cannot afterwards assert his claim against a
purchaser, who has bought the property as being free from all incumbrances.
See LIEN. NUISANCE.
See CUANCERY. PARTNERSHIP.
See CHANCERY. PENALTY. 1. The fourth section of the act of Congress, approved on the 12th day of Febru
ary, 1793, (1 Stat. at Large, 302,) entitled "An act respecting fugitives escaping from justice, and persons escaping from the service of their masters," is repealed, so far as relates to the penalty, by the act of Congress approved September 18th, 1850, (9 Stat. at Large, 462,) entitled "An act to amend, and
supplementary to, the above act." Norris v. Crocker, 429. 2. Therefore, where an action for the recovery of the penalty prescribed in the act
of 1793 was pending at the time of the repeal, such repeal is a bar to the
action. Ibid. PLEAS AND PLEADINGS. 1. Where a declaration contained two counts, one of which set out an injunction
bond, with the condition thereto annexed, and averred a breach, and the second count was merely for the debt in the penalty; and the pleas were all applicable to the first count, which was upon the trial stricken out by the plaintiff
, and the court gave judgment on the second count for want of a plea, this judgment
was proper, and must be affirmed. Hogan v. Ross, 173. 2. By the eleventh section of the Judiciary Act, (1 Stat. at Large, 78,) no action
can be brought in the Federal courts upon a promissory note, or other chose in action, by an assignee, unless the action could have been maintained if there had been no assignment. But an indorsce may sue his own immediate indorser.
Coffee v. Planters Bank, 183. 3. Hence, where an action was brought by an indorsee upon checks which had been
indorsed from one person to another, in the same State, and some of the counts of the declaration traced the title through these indorsements, no recovery
could have been had upon those counts. Ibid. 4. But the declaration also contained the common money counts; and, upon the
trial, these were the only counts which remained, all the rest having been stricken out. The suit against the maker, and also against all the indorsers,
except one, had been discontinued. Ibid. 5. The statute of the State where the trial took place authorized a suit upon such
an instrument as if it were a joint and several contract. Ibid. VOL. XIII.
PLEAS AND PLEADINGS, (Continued.) 6. The dismissal of the suit against all the indorsers, except one, and the striking
out of all the counts against him, except the common money counts, freed the judgment against him from all objection; and, therefore, when brought up
for review upon a writ of error, it must be affirmed. Ibid. 7. In Maryland, it is correct to take a recognizance of bail before two justices of
the peace. Morsell v. Hall, 212. 8. Where a scire facias was issued against special bail, who plcaded two pleas, to
the first of which the plaintiff took issue, and demurred to the second ; and the cause went to trial upon that state of the pleadings without a joinder in demurrer; and the court gave a general judgment for the plaintiff; this was
not error. Ibid. 9. The refusal or omission to join in demarrer was a waiver of thc plca dcmurred
to. lbid. 10. In this case, if the plea had been before the court, it was bad; because, being a
plea that the note was paid before the original judgment, it called upon the party to prove a second time what had been once settled by a judgment. The omission of the court to render a judgment upon the plca could not be assigned
as error. Ibid. 11. A judgment of a court, upon a motion to enter an exoneretur of bail, is not the
proper subject of a writ of error. Ibid. 12. Where the covenant purported to be made between two persons by name, of the
first part, and the corporate company, of the second part, and only one of the persons of the first part signed the instrument, and the covenant ran between the party of the first part and the party of the second part, it was proper for the person who had signed on the first part to sue alone; because the covenant enured to the benefit of those who were parties to it. Philadelphia, Wilmington,
& Baltimore Railroad Company v. Howard, 308. POSTMASTER'S BOND.
POWER OF ATTORNEY.
See COXTRACT and AssIGNMENT.
FRACTICE. 1. Where the only exceptions taken in the court below were to the refusals of the
court to continue the case to the next term; and it appears that the continuance asked for below and the suing out the writ of error were only for the purpose of delaying the payment of a just debt, and no counsel appeared in this court on that side, the i7thi rule will be applied and the judgment of the court below be affirmed with ten per ceni. interest
. Barrow v. Hill, 54. 2. In some of the States, it is the practice for the court to express its opinion upon
facts, in a charge to the jury. In these States, it is not improper for the Cir. cuit Court of the United States to follow the same practice. Mitchell v. Har
3. Where a defendant in error or an appellce wishes to have a case dismissed bc
cause no citation has been served upon him, his counsel should give notice of the motion when his appearance is entered, or at the same term;
and also that his appearance is entered for that purpose. A general appearance is a waiver
of the want of notice., Buckingham v. McLean, 150. 4. An appeal in equity brings up all the matters which were decided in the Circuit
Court to the prejudice of the appellant; including a prior decree of that court from which an appeal was then taken, but which appeal was dismissed under
the rules of this court. Trid. 5. In a trial in Louisiana, where the judge tried the whole case without the inter
vention of a jury, a bill of exceptions to the admission of testimony by the
judge, cannot be sustained in this court. Weems v. George, 190. 6. In Maryland, it is rect to take a recognizance of bail before two justices of
the peace. Morsell v. Hall, 212. 7. Where a scire fucias was josued against special bail, who pleaded two pleas, to
the first of which the plaintiff took isste, and demurred to the second; and the cause went to trial upon that state of the pleadings without a joinder in demurrer; and the court gave a general judgincnt for the plaintiff; this was not error. Ibid.
plca that the note was paid before the original judgment, it called upon the party to prove a second time what had been once settled by a judgment. The omission of the court to render a judgment upon the plea could not be assigned
as crror. Ibid. 10. A judgment of a court upon a motion to enter an exoneretur of bail is not the
proper subject of a writ of crror. Ibid. 11. Where an action of trespass quare clausum fregit was brought, and the defendants
justificd, and the court allowed the defendants, upon the trial, to open and close the argument, this ruling of the court is not a proper subject for a bill of ex.
ceptions. Day v. IVoodlworth, 363. SHIPS OR VESSELS, COLLISION OF.
See ADMIRALTY. STATUTES, CONSTRUCTION OF. 1. The fourth section of the act of Congress, approved on the 12th day of Febru.
ary, 1793, (1 Stat. at Large, 302,) cntitled "An act respecting fugitives escaping from justice, and persons escaping from the service of their masters,” is repealed, so far as relates to the penalty, by the act of Congress approved September 18th, 1850, (9 Stat. at Large, 462,) entitled "An act to amend, and
supplementary to, the above act.” Norris v. "Crocker, 429. 2. Therefore, where an action for the recovery of the penalty prescribed in the act
of 1793 was pending at the tiine of tho repeal, such repeal is a bar to the
action. Ibid. TARIFF
See DUTIES TRESPASS. 1. Where an action of trespass quare clausum freqit was brought, and the defend
ants justified, and the court allowed the defendants, upon the trial, to open and close the argument, this ruling of the court is not a proper subject for
a bill of exceptions. Day v. Woodworth, 363. 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-fces, and the pay
of engineers in making surveys. &c. Ibid. 3. But if they should find for the plaintiff, on the ground that the defendants had
taken down inore of the dam than was necessary to relieve the mill above then, they would allow in damages the cost of replacing such excess, and com persation for any delay or damage occasioned by such excess; but not any thing for counsel-foes or extra compensation to engineers, unless the taking
down of such excess was wanton and malicious. Ibid. 4. In actions of trespass, and all actions on the caso for torts, a jury may give
exemplary or vindictive damages, depending upon the peculiar circumstances of cach case. But the amount of counsel-fecs, as such, ought not to be taken
as the measure of punishment, or a necessary element in its infliction. lbid, 5. The doctrine of costs explained. Ibid. 6. Whether the verdict would carry costs or not, was a question with which the joy
had nothing to do. Ibid. 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 consequential damages which resulted to his wood and corn
McAfee v. Crofford, 447. 8. It was proper, also, to allow the defendant to give in evidence a judgmena
against the owner of the plantation, as principal, and himself as surety, and his own payment of that judgment. It was allowable, both us an explanation
betiveen the principal and surety, whereby time would be given for the pay-
principal in removing his slaves without the Statc. Ibid.
to pay the debt, by showing that the creditor had been enjoined from collect-
on the other side. Ibid.
had a right to take into consideration all the circumstances. Ibid. VENDITIONI EXPONAS.
Sce LIEN. WAREHOUSE LAW.
See DUTIES. WHEELING BRIDGE.
Sce CoxSTITUTIONAL LAW.
END OF VOLUM2 XIIX.