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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,)

giying school lands to such townships, 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 qnestion 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 theso conditions was complied with, nor was possession taken under

the grant, until after 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, because the grantee must have known these circumstances when he obtained the

grant. Ibid. 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 make 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

is 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 cessión, 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 judged 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. I hid. 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 facias, being issued upon this judgment, was levied upon the land; but,

before the issuing of a venditioni exponas, 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 exponas ; 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 mortgage, 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. lbid. 9. The court being satisfied of the error, ordercd 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 procceding, 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.

Ibid. MORTGAGE

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 indorsee 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 onc 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.

55

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, frecd 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 demurrer was a waiver of the plea demurred

to. Ibid. 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 onc 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 sccond 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.

See 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 i7th rule will be applied and the judgment of the court

below be affirmed with ten per cent. 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 Circuit Court of the United States to follow the same practice. Mitchell v. Har.

mony, 115.

3. Where a defendant in error or an appellee wishes to have a case dismisscd be

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 appcarance 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 thc prejudice of the appellant; including a prior decrec of that court from which an appcal was then taken, but which appeal was dismissed under

the rules of this court. Ibid. 5. In a trinl 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 correct to take a recognizance of bail before two justices of

the peace. Morsell v. Hall, 212. 7. Where a scire fucias was issued 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 judginent for the plaintiff; this was not error. Ibid.

PRACTICE, (Continued.) 8. The refusal or omission to join in demurrer was a waiver of the plea demurred

to. Ibid. 9. In this case, if the plea had been before the court, it was bad; because, being a

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 error. 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 error. Ibid. 11. Where an action of trespass quare clausum fregit was brought, and the defendants

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 ex

ceptions. Day v. Woodworth, 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 repcaled, 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 fregit 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 hy 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 engincers in making surveys, &c. Ibid. 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 crnot persation for any delay or damage occasioned by such excess; but not any thing for counsel-fces of extra compensation to engineers, unless the takir g

down of such excess was wanton and malicious. Ibid. 4. In actions of trespass, and all actions on the case for torts, a jury may give

excmplary or vindictive damages, depending upon the peculiar circumstances of each case. But the amount of counsel-focs, as such, ought not to be taken

as the mcasure of punishment, or a necessary element in its infliction. lbid, 5. The doctrine of costs explained. Ibid. 6. Whether the verdict wonld 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 TRESPASS, (Continued.)

against the owner of the plantation, as principal, and himself as surety, 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. Ibid. 9. Evidence was also allowable to show that arrangements liad been entered into

between the principal and surety, whereby time would be given for the pay. ment of the debt. This was allowable, as a palliation of the conduct of the

principal in removing his slaves without the Statc. Ibid. 10. Evidence was also admissible to show that the surety had not been compelled

to pay the debt, by showing that the creditor had bēcn cnjoined from collecting it. This was admissible, in order to rebut the evilence previously offered

on the other side. Ibid. 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. Thid. VENDITIONI EXPONAS.

Sce LIEN. WAREHOUSE LAW.

See DUTIES. WHEELING BRIDGE.

Sce CoxsTITUTIONAL LAW.

END OF VOLUM2 XIII.

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