Volume 34 — United States Reports

Mr Lee, forthe appellees, moved to dismiss the appeal, the same having been:tafcen before a final decree in the cáse in the circuit court. The appellees filed their bill in the circuit court, on the 21st of November 1825. An injunction was directed on the. filing of the bill, which was afterwards in part-dissolved.

In the circuit court, the defendants in error filed a petition in May . 1830, setting forth that on the demise of Richard Smith, an action of ejectment was instituted in the circuit court against Richard Fenn, with notice to Hiram Bryant and William Bryant and others; that the Bryants were tenants to the petitioners and to Robert Trabue, who appeared to the ejectment, had his tenants entered as defendants; and a judgment was rendered at May term 1828 against them.

Held: should be construed strictly. *14 It will be said that .the district judge proceeded, in the former case, on the ground that Mr Nourse was “ an. officerthat he took jurisdiction of the case upon that view of it; but it is submitted to this court that this must manifestly appear ;• it must be fully and clearly established, that in the decree; or opinion of the judge, he was an officer within the intendment *15 of the…

Held: that' the law does not require the utmost possible diligence in the holder,in giving notice of the dishonour of the note; all that is required is ordinary reasonable diligence, and what shall constitute reasonable diligence ought to be regulated with a view to .practical convenience, and the usual course of business.

The appellants, on the 4th of April 1827, filed their bill in the circuit court of the Ünited States, for the district of South Carolina, to set aside a judgment, or postpone the effect of the same, which had been conféssed by William S. Gillett, in the Barnwell district court of the state of South Carolina, for the sum of 30,000 dollars.

appellant it was contended, that, stripped of circumstances, the case is, that Payne held a title bond on Coulson, for six hundred and .forty acres of land, dated in 1787. In 1791, Isaac Coulson the obligee died, leaving John Coul-son, the appellant, his heir. This bill was filed for a specific decree, in 1822, more than thirty years after the ancestor’s death.

WRIT of error to the circuit court of the United States for the district of Kentucky. inquired, if the court had come to a final decision as to the argument of the cases involving constitutional questions at the present term.

Held: that although .the statute of frauds avoids parol contracts for lands, yet the complete execution of the contract in this case by Carrington, by conveying to Williams the land he agreed to give to Williams in exchange, prevents the operation of the statute in this case.

ERROR from the circuit court of the United States for the district of Columbia, in the county of Washington. On the 2d of December 1831, a writ of capias ad respond-endum, in case, was sued out of the circuit court, by the Washington, Alexandria and Georgetown Steam Packet Company against William A.

ON.appeal from the district court of the United States for th,e Missouri district. - On the 18th of May 1829, Charles Dehault Delassus, legal representative of Pedro Dehault Delassus, under the authority of the act of congress, entitled “ an act enabling the claimants to lands with the limits of the state of Missouri, and the territory of the Arkansas, to institute proceedings to'try the validity of their claims,” filed in the office of the. clerk of the district court of…

Ori the 18th of May.1829, the following petition, with the documents therein referred to, was presented by the appellants to the district court of the United States- for the district" of Missouri. “ To the honourable the district court of the United States for the district of Missouri. “ The petition of Auguste A. Chouteau, Gabriel Ceré Chou-teau, Henry Chouteau, Edward Chouteau.

Under the authority of an act of congress, entitled ‘fan act enabling the claimants of lands within the limits of the state of Missouri, and the territory of Arkansas, to institute proceedings to try the validity of their claims,” the appellants,'on the lSl.h of May 1829, filed the following petition and documents. “ To the honourable judge of the district court of the United States for the state of Missouri. . “ Respectfully showeth your petitioners, Ceré, Henry and Edward…

district court of the United States for the eastern district of Louisiana, (a) The appelleeinthiscase,whowas the plaintiff in the courtbe-low, instituted his suit in the district court of the United States for the eastern district of Louisiana, against one Pierre Oassies, and obtained a judgment, against him in the due course of law, for the sum of 3100-dollars, with interest at the rate of five per cent, from the 1st of December 1829, until paid, and costs of suit; from…

<p>The decree of the supreme court of East Florida, confirming a concession of land to the appellee, granted to him by governor Coppinger, in December 1817, confirmed..</p> <p>A concession on condition, becomes absolute when the condition is performed.</p> <p>The original concession by governor Coppinger, on the petition of George J. F. Clarke, was made on the 17th of December 1817, of twenty-six thousand acres of land, in the places he solicited in his petition, and a complete title was made of twenty-two thousand acres, part of the same, in December 1817. Twenty thousand acres, part of the whole concession, were sold by the appellee. The other four thousand were surveyed in conformity with the decree of 17th of December 1817, and a completo title to the same waá made by governor Coppinger, on the 4th of May 1818. By the Court. The claimant cannot avail himself of the grant of the 4th of May 1818, made after the 24th of January 1818, the time limited by the Florida treaty.' He must rest his claim on the concession made on the 17th of December 1817.</p> <p>The validity of concessions of. land, by the authorities of Spain in East Florida, is expressly recognized in the Florida treaty, and in the several acts of congress.</p> <p>The eighth article allows the owners of land, the same time for fulfilling the conditions of their grants’ from the date of the treaty, as is allowed in the grant from the date of the instrument. And the act of the 8th of May 1822, requires every person claiming title to lands, under any patent, grant, concession, or order of survey dated previous to the 24th of January 1818, to file his claim before the commissioners, appointed in pursuance of that act. All the subsequent acts on the subject observe the same language ; and the titles under these concessions have been uniformly confirmed, when the tract did not exceed a league square.</p>

<p>On the 15th of September 1817, the appellee, on his petition to the governor of East Florida for a grant of land for fifteen thousand acres, for services performed by him, obtained a decree of the governor for the same. The land is described in the petition particularly, and its location designated. In December 1820, an order of survey was obtained for the lands, and they were surveyed. The certificate of- survey omits to state that the lands lie at the place described in the petition. The surveys were executed in April 1821, and full titles to the land were granted in the same month. By the Court.' The order of survey, and the full title granted for the land surveyed, could convey, nothing not comprehended in the decree of the 15th of September 1817. That decree was for fifteen thousand acres of land, lying at the place described in-the petition.</p> <p>The district court-decided that the claim was valid, and confirmed it, according to the surveys. By the Court. This court concurs with the district court so far as respects the validity of the claim, but disapproves of that part of it which confirms the title to the lands described in the surveys made in April 1821. These surveys do not appear to conformfto the concession, under which alone the petitioner can claim.</p> <p>The decree of the district court was affirmed so far as it declares the claim of -the petitioner was valid, and reversed so far as it confirmed the title to the land in the surveys. The cause was remanded to the district court, with directions to cause a survey to be made of the lands contained in the concession, according to its terms, and to decree the same to the claimant.</p>

the United States for the eastern district of Louisiana. In the district court of the United States, on the 30th of March 1831, the attorney of the district filed a petition of complaint, on behalf of the United States, against Seaman Field, Samuel J. Peters, and Thomas Toby, residing in the city of New Orleans, Syndics of L. E. Brown ; stating that one Lewis E. Brown, of .the city of New Orleans, on the 27th of October 1829, executed a certain bond to the United States in…

The appellees, Josiah Thompson and wife, on the 14th of June 1826, filed a bill ori the equity side of the circuit court, alleging that-George King, in October 1812, a few days after the marriage of Josiah Thompson with Elizabeth, the daughter, of the said George King, proposed to grant to the said Thompson and wife, a house and lot of ground in Georgetown; if Thompson wouldNepair and make it comfortable for a residence; at the same time informing Thompson, he intended the…

The defendants in error commenced a petitory action, by filing a petition in the first district court, in and for the first judicial district of the state of Louisiana, claiming to . be the owners of a lot of ground in the city of New Qrleans ; eighty feet frontj and close to the foot of the Old Levee, between St Philip’s and Maria streets; and stating that, the lot had formerly been built upon, and had been possessed by a certain Thomas Beltran, or Bertrand, with the…

Held: that a person making, .or knowingly using a false affidavit of debt, sworn before a foreign magistrate, in a foreign country, for the purpose of holding a party to bail in England; although such affidavit' was not authorized by any statute, but was solely dependent upon the practice and usage of the courts, of England; was punishable as a misdemeanour at the common law, as an attempt to pervert public justice.

GN a certificate of division of opinion of the judges of the circuit court of the United States, of the district’ of Kentucky.

Held: that'if the siyn of 2100 dollars, the rents of the lands in Mississippi, came into the hands of Robert Boyce, as assets of thepstate of James Boyce, no decree could be had against him in his individual capacity, in this case.

<p>Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury when requested; but they cannot legally give any instruction which shall take from the jury, the right of weighing what effect the. evidence shall have.</p> <p>An instruction to the jury, founded on part .of the evidence only, is error.</p>

John Campbell, a native of Ireland, who emigrated to the state of Virginia, before the revolutionary war, and continued to reside in Kentucky until his decease, which took place in October 1799, was the owner of a tract of land situate above and below the mouth of Bear Grass creek,- on the Ohio; comprising the land on which, by an act.of the legislature of Virginia, the city of Louisville was laid out.

Held: The defendant was not entitled to plead this'as a set-off to the claim of the United States. The rule as to set-off, in questions arising exclusively under the laws of the United States, cannot be influenced by any local law or usage. The rule must be uniform in the different states; for it constitutes the law of the courts of the United States, in a matter which relates to the federal government.

Held: that this delegation of power by congress was perfectly constitutional; that'the power to alter and add to the process and modes of proceeding in a suit, embraced the whole progress of such suit, and every transaction in it from its commencement to its termination, and until the judgment should be satisfied ; and that it authorized the courts to prescribe and regulate the conduct of the officer in the execution of…

Held: the Bank of Kentucky had agreed to pay'interest, at the rate of six per centum, until the same should be redeemed.. All the notes of the Bank of Kentucky, held by the Bank of the United.States, were finally paid with the interest.

Held: that the court can take no notice of the proofs; for the proofs, to be admissible, must be founded upon some allegations in the bill and answer. If the merits of the case were not otherwise clear, the court might remand the cause for the purpose of amending the pleadings.

Held: that he was an interested, and incompetent witness. The statute against usury not only forbids the direct taking more than six per centum per annum for the loan or forbearance of any sum of money; but it forbids any shift or device by which this prohibition may be evaded, and a greater interest be in fact secured.

<p>IN error to the circuit court of the United States, for the county of Washington in the District of Columbia.</p> <p>The defendants in error instituted a suit in the circuit court to recover their freedom, alleging that they were entitled to it under the last will and testament of their late mistress, Frances Edelin deceased, in the state of Maryland. The plaintiff in error claimed the petitioners as his slaves, having purchased them of the sole acting executor of the deceased, at a sale made by the order and authority of the orphan’s court of Prince George’s county, in Maryland; and, by the consent of all parties to the suit, the executor was admitted to defend the same in the court below. It was proved in the circuit court, that the slaves were sold by the executor, with all the other personal estate of the deceased, by authority of the aforesaid orphan’s court, as assets in. the hands of the executor, to pay the debts of the deceased; there not being assets enough to pay the same without the sale of said slaves, and without recourse to the real estate. It was contended that the sale was a good one, and that the slaves were not entitled to their freedom. The following facts in the case were agreed, and submitted to the court, with the other evidence in the case, and making a part of the record now before this court.</p> <p>It is agreed in this case—</p> <p>1. That the petitioners aré the same named in the will of Frances Edelin deceased, to whom she gave their freedom after-her death, as appears by the said will, a copy whereof is hereto annexed.</p> <p>2. That Edelin, the defendant, .was the executor of the last will and testament of said deceased, and, as such, sold, in. the year 1833, said petitioners to the other defendant, Fenwick.</p> <p>3. That the sale,of the petitioners was made in Prince George’s county aforesaid, where the deceased lived at the time of her death, and where the petitioners were; and that, from the time of deceased’s death to. the time of their sale, they were permitted by the executor to go at large as free, and that after the purchase made by Fenwick he brought them to the District of Columbia,-where the present suit was instituted, and that after the institution of the said suit, Fenwick transferred his claim to the petitioners to the defendant Edelin, who repaid him his mofiey, and appears to defend the suit.</p> <p>4. That the deceased left real estate to an amount in value more .than sufficient to. pay her debts without the sale of the negroes emancipated by the will, as will appear by her will referred to, and made a part of this agreement; but not personal estate sufficient.</p> <p>5. That the original copy of all the proceedings had in the. orphan’s court of Prince George’s county, relative to the settlement of the deceased’s estate, by her executors or administrators, may be .filed as part of this case.</p> <p>The will of Frances Edelin, the proceedings in the orphan’s court of Prince George’s county, and all the material facts in the case, are fully stated in the opinion of this court, delivered by Mr Justice Wayne. Upon a hearing in the circuit court, judgment was given in favour of the petitioners in that court, now defendants in error, and from that judgment a writ of error was sued out to this court.</p> <p>Mr Brent stated, that the only questions for the court to decide, are, whether the defendants in error are entitled to their freedom or not, under the circumstances of the case; and whether the plaintiff in error (the executor) has, or had not, the right to sell them, as assets to pay the debts of the testator. After reading the petition, the answer, and the agreement as to the facts in the case, and the will of Frances Edelin, he referred to the proceedings in the orphan’s court of Prince George’s county; which showed that the personal estate of the testator was insufficient to pay the debts of the deceased; and that under these circumstances, the orphan’s court ordered the sale of the negroes, and they were sold.</p> <p>Prior to the year 1796, there could not be, under the laws of Maryland, a manumission of slaves by will. This act was, in 1796, repealed, under certain limitations; and among them, that no such manumission is available if done in prejudice to creditors.</p> <p>The first ground for the reversal of the judgment of the circuit court, is, that this manumission was in prejudice of creditors. The fact of the insufficiency of the personal estate, ex-elusive pf those negroes, is established by the proceedings of the orphan’s court, and' the accounts of the executor.</p> <p>Creditors are not bound to resort to the real estate for the satisfaction of their claims, when personal estate can be found. Cited : 1 P. Wms 294, note; 2 P. Wms 664; 1 Rob. on Wills 67; Kelty’s Laws of Maryland, act of 1798, ch. 101, subdiv. 7 chap. This .act declares what shall be assets for the payment of debts ; among v. hich. are negroes.</p> <p>In a case in 1 Harris and Gill’s Reports, the testator charges his lánd with the payment of debts, rather than that his ne-groes shall be sold, and deprived, of their freedom, which is given to them. In this case, the question as to the construction of the act of 1796, was waived.</p> <p>The testator died in 1825, and, by her will, she charges her whole estate with the payment of her debts, both real and. personal, and gave freedom to the defendants in error. The executor assented to the bequest of freedom; they were at liberty for eight years; when, under an order of the orphan’s court, to which they were not parties, and of the proceedings of which court they had no notice or knowledge, they were taken and sold. Over such a case, that' court had no authority or jurisdiction. The court could not manumit.</p> <p>It will be found, on an examination of the proceedings of the orphan’s court, that, in July 1833, the balance due the executor was 591 dollars, and the court did not specifically order the negroes sold. The order was general, to sell all the personal estate, and not to sell any particular part of it. This is shown, by the acts agreed.</p> <p>By the 24th chapter of the law of Maryland of 1729, ne-groes are not to be sold as long as there are other goods. In this case, the only debts are to the executor himself for over-payments by him in his administration of the estate; and he is the residuary legatee.</p> <p>All the legatees, on a deficiency of other assets, must contribute. 2 Vern. 708; 2 Mad. Ch. 1Ó9, 107 ; 2 Ves. Jun. 415, 420.</p> <p>Where it may be collected from a will, that any particular legacy shoüld be paid, and exempted from contribution* in the event of a deficiency to pay debts, it shall be done. In the case of a bequest of freedom, there must, from its very nature, be sueh an Intention. How could the negroes be made to contribute 1 The whole of the bequest is defeated, and its purpose destroyed, if the executor has a lien oh the freedom of the negroes for contribution. Freedom cannot 'be partedjit cannot be enjoyed, nor does it exist unless it is’ entire. Any restraint upon it, which puts in the power of another a right to-sell a part of it, destroys.it altogether.</p> <p>. No inference can be drawn from the bequest of freedom, but that it was entire and unincumbered. It was fully, completely and irrevocably bestowed; when it was given at all.</p> <p>Nor does the law warrant the claim which is made by the counsel for the plaintiff in error; that because there is a deficiency of personal estate, when the real estate is also charged with the debts of the testator, personal. estate, specially bequeathed, shall be taken from a legatee and sold, leaving the real estate free and unmolested.</p> <p>It is also contended, that the executor, having consented to the freedom of the defendants in error, cannot afterwards withdraw this consent, and subject.them to slavery. Once free, always free. By no lay or proceeding, existing or authorized in any state of the United States, can they again be made slaves.</p> <p>Where a legacy has been assented to, or paid by ah executor, it cannot be recovered back. This principle applies to the case before the court, as the freedom of the defendants was assented to by the executor. Cited, in support of the discharge of the legacy from reclamation : 1 W>rn. 94; 2 Ventr. 358 ; 2 Chan. Cases 145; 1 Chitty’s Dig. 630.</p> <p>insisted, that real estate can be resorted to in no other case, but where there is a deficiency of personal estate ; and even in such a case, by the law of Maryland, an application to make the real estate liable must be made to the chancellor.</p> <p>The testatrix does not charge her whole estate .with her debts. This is not the true interpretation of the will. When debts •are charged by a testator on an estate, that portion of it which, according to law, is first held liable to debts, is understood to be so charged in the first place. This is a just and legal exe- • cution of the will. In Roberts on Wills 175, it is laid down,. that real estate will not be ordered for sale to save a charity. Cited also, 1 P. ffms 294.</p> <p>It is denied that the executor could give the negroes their freedom, to the prejudice of creditors. Their rights could not be affected by any act of the executor. Nor did he give them their freedom ; he barely allowed them to go at large.</p>

Matthias Aspden, on the 6th day of December 1791-, made his will, with the codicils auuexed thereto, as follows : “ These are to certify, that I do hereby annul and revokes all my former wills, giving and bequeathing. my estate, real and persona], to my heir-at-law, first paying all my just debts and funeral expenses, and the following legacies, fiistf to each of the children of my half brother, Benjamin Hartley deceased, that may be alive at my death, the sum of 100 pounds…

Tliis was an action of assumpsit, instituted originally in the county court of Montgomery county, in the state of Maryland; and by agreement of the parties transferred, with all the pleadings, depositions and other proceedings therein, to the circuit court of the United State's for the county of Washington, in the District of Columbia. .

ON motion for a mandamus to the district court of the United States, for the eastern district-of Louisiana. s The casé is fully stated in the opinion of the court. Mr Rutler stated, that the case was before the court upon the following order.

Held: that the circuit court was bound to .take judicial notice of the laws of Louisiana; and that lite copy being evidence by those laws, was evidence in this case. The circuit courts of the United States are created by congress; not. for the purpose of administering the local law of a. single state alone, but to administer the laws of all the states in the union, in cases to which they respectively apply.

On the 25th of July 1832, the appellant, Edward Livingston, filed a bill of complaint in the district court, by his solicitors; stating that on or about the 25th of July 1822, being in want' of money, he applied ,to Benjamin Story and John A. Fort, of the. city of New Orleans, .who agreed to lend to him the sum of 22,936 dollars; of which a part only was paid in cash, part in a note of John A. Fort, and 8000 dollars, parcel of the said sum, was agreed to be afterwards paid…

Held: that there was no error in admitting this evidence. . At the time of tlie admission of this evidence, it was forty years old. Abram Jones, the subscribing witness to the original, was long since dead, and it ■ did not apgear that the other witness, was alive. The original power did ' not exist, so. that no evidence of the hand writing of the other witness could be given.

Held: that the letters were not ■ legal evidence. The confessions of an agent are not evidence to bind his principal, nor is his subsequent account of a transaction to his principal, evidence.- .But his acts, within the scope of his powers, are obligatory upon his principal; and those acts may be proved in the same manner as if done by the principal.

Held: that this was legal evidence. IN error to the circuit court of the United States for the district of Maryland. The defendants in error instituted an action of assumpsit in the circuit court, and in the declaration, stated themselves to be citizens of Maryland, and that the defendant was a subject of the king of Spain; The declaration contained the common counts.

Held: that he ■ was- properly in custody. The rule for .the habeas corpus was • refused. A RULE tó show cause why a habeas, corpus should not be awarded to bring up the body of George'' Milburn, in confinement in the jáil of the-county of Washington in the District of Columbia.

Held: that the acts of congress submit these claims to the adjudication of this court as a court of equity; .and those acts, as often and uniformly construed in its re-' peated decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles, as legal and perfect ones, and require the court to decide by the same rules on all claims submitted to it, whether legal or equitable.