Volume 40 — United States Reports

. A bill was filed on the. equity §ide of the Circuit. Court ■of the District of Columbia, stating that ..the complainants are the next of kin and distributees of Janies Moody, deceased, who resided in Kentucky at .the time of hjs death: that the defendant, Northup, took out letters of administration on the estate of said Moody, in the proper court in Kentucky, and by virtue of said letters claimed and received from the government of the United States a -large sum of money,…

ON a certificate of division from the Circuit Court of- the United States, for the Eastern District of Louisiana. A bill of complaint was originally filed in the District Court of the United States for the Eastern District of Louisiana; and was afterwards transferred to the Circuit Court for the same District. Subpoenas were issued on the 1st of August, 1836, with a copy of the bill, to each and all thé defendants, about fifty in, number.

WRIT of error to the Supreme Court of the State of Ohio, to reverse the judgment- of that Court. The original action of ejectment was brought in the Court of Common Pleas of Clinton county, and taken thence by appeal to the Supreme Court; where it was tried, and a verdict and judgment given for the plaintiffs, at May term, 1833. After-wards, a new trial was ordered; and on a ease stated, a judgment was rendered by the Court in favour of the defendant.

<p>Dower. — Dower is a legal right; and whether it be claimed by suit at law or in equity, the principle is the same. On a joint tenancy, at common law, dower does not attach.</p> <p>No title to dower attaches on a joint seisin of real estate. The mere possibility of the estate being defeated by survivorship, prevents dower.</p> <p>If the husband, being a joint tenant, convey his interest to another, and thus at once destroy the right of survivorship, and deprive himself of the property, his wife will not be entitled to dower.</p> <p>:The time of the delivery of a deed may be proved by parol.</p> <p>By the common law, dower does not attach to an equity of redemption. The fee is vested in the mortgagee, and the wife is not dowable of an equitable seisin.</p> <p>When the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase, money in whole or in part, dower cannot be claimed as against rights under the mortgage. The husband is not deemed sufficiently or beneficially seised by an instantaneous passage of the fee in and out of him, to entitle his wife to’dower as against the mortgage.</p> <p>It is the well established doctrine, that of a seisin, for an instant, a woman shall not be endowed.</p>

Held: as it was, under the dominion of Spain, according to the treaty of cession, and the proceedings under it in other cases.

Held: That the patentee was a purchaser with notice of the prior title of the heirs; and that he-was bound to make the conveyance asked from him.

AT January term, 1840, the case of Jefferson L. Edmonds et al. appellants, v. Anderson Crenshaw was brought before the Court, on appeal from the decree of the Circuit Court of Alabama, which had been given in favour of the appellee; in which Court the bill of the complainants, the appellants, was ordered to be dismissed.

This suit was instituted in the Circuit Court by the defendant in error, against Archibald K. Smith, the plaintiff, and'Neil Munn, its the makers of a promissory note, payable to John Barge or bearer. The note was signed by A. K. Smith and Neil Munn. The writ of capias, by which the action was brought, stated Archibald K. Smith and Neil Munn to be citizens of'the state, of Alabama ; and that Alfred Clapp was a citizen of the state of New York.

Held: the recital of the royal order, in this case, is quite immaterial. The case of the United States v. Wiggins, 14 Peters, 325, which decided that certain proof of the certificate of Aguilar, Secretary of East Florida, was sufficient, cited; and the decision on that point affirmed. The Spanish governors of Florida had, by the laws of the Indies, power to make large grants to the subjects of the crown of Spain.

Held: thaf the receiver was entitled to charge his commissions on the whole sum received by him in the part of the year he was in office; the same not exceeding, with his salary, the amount of three thousand dollars.

Held: that the order for executory process was not a final judgment of the Circuit Court, on which a writ of error could issue.

Held: that these surveys were not inade on the land granted by Governor Kindelan; and, according to the déeisions’of this Court, on all occasions, the surveys, to give them validity, must be in conformity with the grants on which they are founded ; and to make them the origin of title, they must be of the land described in the grant of the Spanish government. The cases of the United States v. Clarke, 8 Peters, 486.

Held: that the sureties could only be made answerable for moneys in Rector’s hands at the date of the bond; •which were held by .him in his official capacity, in trust for the government, and not-for moneys previously appropriated to his own use. Say the Court, “ If intended to cover past derelic *208 tion, the bond should have been made retrospective in its language.

Held: that the substance of the forty-third rule of the Court was complied with; and the case was docketed and dismissed. The production of the writ of error, with the citation, is the highest evidence that the writ of error has been duly sued out and allowed.

<p>A judgment was entered on a promissory note drawn by Kelly and others in favour of Lea and others, in the Circuit Court of Alabama. Afterwards, Kelly, the appellee, filed a'bill on the equity side of the Court, fot the purpose of being relieved from the judgment at law obtained against him and two other persons, on the promissory note. The bill alleged fraud in the plaintiffs, in the suit, and that the complainant had no notice of the suit, and had not authorized an appearance, or filed any plea.in the same.. The bill prayed for a perpetual injunction of proceedings on the judgment, and for general relief. The injunction was granted: arid afterwards, on the appearance of two of the plaintiffs in the suit at law, the Circuit Court decreed, that, on the condition that'the complainant, Kelly, appear and' plead ,to the merits of the case, waiving the question of jurisdiction, and pay costs of the suit at law, and the proceedings iniquity, a new trial .be awarded to the complainant. Two of the plaintiffs in the suit at law, who had'appeared to the bill, appealed to the Supreme Court, seeking to reverse this decree. Heíd, that the decree of the Cirfcuit Court was merely interlocutory; and was not a final decree for which an appeal could be taken.</p>

Held: that the government of the United States were not b'ound, under the Florida treaty, to confirm the grant.

Joseph Delespine' and others presented a petition to the Superior Court of East Florida, claiming ten thousand two hundred and forty acres of land, at the north head .of-Indian river, by virtue of a concession from Governor Coppinger, the Spanish Governor of East Florida, to Pablo Fontane, dated November 10, 1817. . The grant, and circumstances of the case, are full stated in the opinion of the Court.

Held: with the actual boundaries to their territories well known and long established. Independencé was declared by the states with these limits. The treaty of peace [n 1783 acknowledged the states as they then existed.

Held: that this is a decree not granting fifteen thousand aces as asked for; but so much at the place where it is asked for as shall be surveyed in conformity with the number of workers the grantee may have to cultivate the land; the quantity could be determined by the regulation of the Governor, made .the month after the grant, and determining the quantity of land to be surveyed accerding to the number of persons in the…

. IN error to the Circuit Court of the United 'States for the Southern District of Mississippi. -stated that he had a transcript of the record in this case, duly authenticated, which he-was ready to file, and to docket the case, under the rules of the Court; and he moved the; Court to set aside and annul the judgment of the Court, docketing and dismissing the writ of error rendered on a prior day of this term, and also to revoke, the mandate of this Court, issued and…

Held: that this is an interlocutory, and not a final decree, in the sense of the act of Congress; and an appeal from the same cannot be taken. ON appeal from the Circuit Court of the United States for the southern district of Alabama. This case was before the Court, on a motion to dismiss the appeal; the decree of the Circuit'Court of. Alabama, being, as was contended by Mi’.

Held: that the Postmaster General, as a public officer, was fully warranted in taking a bond which was to secure the payment over of moneys coming into the Deputy Postmaster’s hands, where no law prohibited such a security.

Held: that the grant made hr-1813, of land at the mouth of New river, imposed no obligation on the government of Spain, at the date of the Florida treaty, in 1819, to confirm the title claimed by the grantee; and that none rests on the government of United States, as the successor of the government of Spain, to the rights and obligations of Spain.

Held: that the balance claimed in this action from the defendant, was upon a transcript from the Treasury including those items, which had been charged to him as Chief Engineer; and as there was no distinct charge on the transcript objected to, the refusal of the Circuit Court to sustain the objection was proper.

Held: That the Bank became the holder of' the draft unconditionally accepted, for valuable consideration-; and its right to charge the- United States with .the amount cannot be defeated by any equities between the drawers, and the Post Office.

<p>IN error to the . Circuit Court of the United States for East Louisiana.</p> <p>The United States, by a petitory action in the Circuit Court of Louisiana, claimed a tract of land, situated in the parish of Plaquemine, on the river- Mississippi, below the port of New Orleans.</p> <p>This land, one hundred and sixty acres, had been entered by the defendants in error, under a pre-emption right alleged to be founded on the possession arid cultivation of the tract, commencing in 1833. The entry had been regularly made in the office of the Register of Public Lands, in Louisiana, under the act of Congress of 1834, on the 18th of June, 1836, and the purchase money, paid to the United States. John Fitzgerald, on the 6th of Ma]i, "1833, had been appointed an Inspector of the Customs for the port' of New .Orleans, and was despatched by the Collector of that port to the. south-west pass of the Mississippi river, in order to discharge the duties of boarding officer. He was stationed at a proper'.point on the river, and himself and his wife took possession of a' hou.se which .had. been occupied by a former boarding officer, on the public lands of the-United States. The government had provided no place for the residence of the boarding officer. The land was cultivated and improved by John Fitzgerald and Hipolite Fitzgerald, his wife, in the manner which, by the. laws of the United States, gave them a preemption right to the same; unless there had been a previous appropriation, by the United States, of the tract for public, purposes.</p> <p>Some months after the entry of the land and the payment of the purchase money, the Secretary of the Treasury, through the acting Comm isioner of Public Lands, directed the tract to be reserved from sale for the use of the United States.</p> <p>The United States proceeded,by this action, in the Circuit Court, to establish their right to the land; alleging that Fitzgerald and liis wife had acquired no right, or title to the land, but that' the same continued a part of the .public lands of the United S.ates. They, averred that the possession which had been taken of the land by John Fitzgerald and his wife, had been for the use of the. 'United States; John Fitzgerald being at the time an officer in the service of the United States.</p> <p>The Circuit Court ordered the petition of the United .States to be dismissed: and decreed that the defendants in error- should be confirmed in their title to the land.</p> <p>The United States prosecuted this writ of error.</p> <p>Mr. Gilpin, for the United States.</p> <p>The mouth of the Mississippi river consists, as is well known, of five outlets of “ passes,’ ’ as they are called, -which run through the narrow banks or tongues of alluvial land that stretch into the Gulf of Mexico. The principal of these, the ■ south-west. pass, extends for almost fifteen miles into; the' ocean, having on. each side a narrow margin, chiefly of' swamp. In some places this bank between the river and the ocean, is not. more than . three or four hundred yards in' width. In other places it '.has greater breadth. On this narrow strip, on the west side of the river, a short distance above the Balize, or extreme mouth of the Mississippi, is a spot which afforded a small space sufficiently protected to enable fhe boarding officer attached to the custohi house at New Orleans, to have a sort of land station. It was so. occupied, as is in .evidence in this cause, as early as. the year . 1830; and by common repute, - and without doubt, it had been 'so occupied long before. On the 2d of March, 1829, Congress, by law, directed a survey of the passes of the Mississippi, with a view to the improvement of their navigation, and the building ■of lighthouses, (8 Laws U. S. 202;)" and on the 3d of March, 1831, they passed an act appropriating forty thousand dollars for building'a lighthouse on the south-west pass, and another near the Balize. The boarding station at the former place may be'regarded as being,-in the contemplation of Congress, the spot -for the former, it being, as the evidence in this case states, the only spot in that region where such a station could be made. -In the year 1833, four years after the survey, and two years after the appropriation for building the lighthouse, the Collector of the customs at New Orleans, employed the defendant, John Fitzgerald, as an Inspector, and stationed him as the boarding. officer, in the cruising vessel at'the south-west pass. He was allowed to be occasionally on shore at a convenient place 'on the pass, and the spot in question had always been used for that purpose. There was a house there; but by whom originally built does not appear. There is no evidence of its being built by the United States, nor any of its erection by the defendant. The Collector says, that finding this place “so used by the boarding officer, he continued him thére without any special instruction from the President,^or the Secretary of the.Treasury.”</p> <p>On the 6th of March, 1834, the legislature of Louisiana passed a law, ceding the civil and criminal jurisdiction over the land to the United-States.</p> <p>On the 29th May, 1830, an act ‘of Congress was passed, (4 Story’s Laws, 2213,) to grant pre-emption rights to settlers on the public lands. The provisions of that act were, that every “ settler or occupant” of the public lands, who was then in possession, and had cultivated it in the year 1829, might enter at the land office not more than one hundred and sixty acres, to include.his improvement, at the minimum price.- If there were two or more persons settled on the same quarter section, it might be divided between them, and. each enter eighty acres elsewhere. Before entry under the act, proof of settlement or impro.vement was to be made to the Register and Receiver, agreeably to the rules prescribed by the General Land Office. No entry was to bé made under the act of any land which was either “ reserved for the use of. the United States, or either of the several states, or reserved from sale by act of Congress, or by order of the President, or which might have been appropriated for any purpose whatever.” This law was to-expire in one year from its date.. On the 10th June, 1830, and the 14th.September, 1830, full rules 'were prescribed by the Commissioners of the General Land Office relative to the execution of this law, directing the precautions to be taken in regard to proof of occupancy -and cultivation, what was the meaning of those terms, and requiring actual payment. 2Birchatd’s Land Laws, 539. 545. On the 10th June, 1S34, an act was passed to revive the pre-emption act. of 1830, which gave, for two years from its passage, .all the privileges of that act to every settler- or occupant of the public 'lands who was then in possession, and had cultivated any part thereof, in the year 1833. On the 22d of July, 1*884, full-rules were issued by the Commissioner of the General Land Office, (2 Birchard’s Land Laws,' 589,).as the law required,-and directions were given as to the nature and mode of proof by which the pre-emptor’s 'right was to be’ascertained. On the 2.9th February, 1836, additional rules (2 Birchard’s Land Laws, 624) On the sapie subject were-issued, as the period at -which this, privilege wás about expiring approached; in this, the regulations a? to oroof were more fully set forth, especially in the cases where floating rights were claimed -by an alleged settlement of more' than, one person.. On the 2d June, 1836, John Fitzgerald and Hipolite Fitzgerald his wife, made an affidavit before W. B. G. Taylor, a justice of the peace in the parish of Plaquemines,.annexed to an application to the Register and Receiver at New Orleans to become the purchasers of one hupdred and sixty acres of land, being section 8, of township 24, range 30 east, under the provisions of the act of .19th .June, 1834, and stated that they had cultivated the same and- were in actual possession and occupancy thereof at the date of the law. On the 3d June, the day after, a deposition was- made by two persons before the same justice, stating, generally, that the facts set forth in the application of Fitzgerald and his wife were true. On the- 18th of June, the day on which the act expired, an application for a. float for one hundred and sixty acres in,addition, appears-to have been made, but is not signed by either Fitzgerald or his wife. On the same day is a certificate signed by the Register at New Orleans, stating, “ that the foregoing lots contain three hundred and twenty-seven acres and -a half, as stated in the foregoing application, according to the. returns of the Surveyor General, and that the price agreed upon is ,one dollar and twenty-five cents an acre.” On the 3d of November, 1836, a letter was addressed to the Register, by the Commissioner- of the General Land Office, stating that the application of “John Walker” to enter section 8, township 24, range 30 east, had been received from him,- but that the Secretaryof the Treasury has directed it to be reserved from sale, as important for the use of the Custom House, and he directs him to apprize Mr. Walker, and Messrs.' John and Hipo'ite Fitzgerald that no entry, whatever, can be permitted. Fitzgerald, however, subsequent to the termination of his office as an inspector, continued to assert his right to the property as pre-emptor, which had become valuable from the lighthouse being erected upon it; and, on the 5th of January, 1837, a petition was filed, by the District Attorney, in the Circuit Court of the United States in Louisiana, setting forth this claim, denying its legality, and praying that they should be adjudged to deliver up. possession of the land to the United States. On the 20th February, 1837, the defendants filed their answer, iii which John Fitzgerald admitted that he was boarding officer at the southwest pass, and stated that he was under the necessity of procuring accomodations” there, the same not being furnished by the United States; and that he was entitled to the benefits of the pre-emption law; they, therefore, prayed that the suit might be dismissed, and all other relief granted that the nature of the case might require. On the 28th December, 1839, the Circuit Court, the District Judge alone sitting, gave judgment “ that the defendants be quieted in their possession of the premises in dispute, and that the plaintiffs take nothing by their petition.” On the 21st April, 1840, a writ of error was issued from this Court.</p> <p>It is submitted that this judgment was erroneous; because</p> <p>1. A decree to quiet the possession of the defendant, was.not one which the Court could properly render in this suit against the United States;</p> <p>2. The defendant could not, at tíre time this suit was brought, claim the benefits of a pre-emptor in the land mentioned in the declaration.</p> <p>3. The land mentioned in the declaration was not subject to entry, under the act of 19th June, 1834,</p> <p>I. A decree to quiet defendants’ possession, is not one that the Court ought to have made. It is given as a mere interlocutory proceeding, while a suit to try the right of possession is pending, (2 Story’s Equity, 161;) but, in this case, it is a final decree, bar- ' ring the plaintiff’s right. York v. Pilkington, 1 Atkyns, 284. East India Company v. Sandys, 1 Vernon, 129, and note. Anonymous, 2 Vesey, Sen. 414. Belknap v. Belknap, 2 John. C. C. 472. Nor was such a decree asked for by the defendants. The United States claimed the land; the defendants were in possession; the United States were to establish their title; if good, to gét possession ; if bad, to be. refused it, and dismissed. What necessity was there for the Court to give any other'judgment? It was totally uncalled for; and, if given in accordance with any peculiar practice of Louisiana, let that be shown. Such would not seem to be the case, judging from the decision of the Supreme Court’of that state, in the case of Cullivec v. Garick, 11 Louis. Rep! 89. Unless sustained by such local practice, the precedent is a dangerous one. In ejectment, the plaintiff relies on his own title. He is prepared only to examine and present that. If he fails to make it good, his suit is lost. If the Court, passing beyond this, decides upon the defendants’ title, they decide a point not necessarily before .them, and which the plaintiff .was not warned would be presented, or prepared to meet.</p> <p>If, however,- the defendants’ title was properly before the Court, on what ground could it adjudge that they were entitled to possession ? Under what right were they ? It is admitted that they had no legal title; that remained in the United States. At the most, they could have had nothing more'than an equitable claim - to a title; and they had .not, in fact, even that. If they had a.Register’s certificate in due form, it gave them no title; it proved merely a few facts, necessary, indeed, to their procuring-a title, but by no means sufficient or conclusive. But, by this judgment, they obtain, on such a ground, an^absolute and complete title. They have a decree of a Court, awarding to them a possession that nothing is to. disturb. This, too, they obtain against those who have, and never have parted with, the actual' fee. A patent could give them no more.. This decree, therefore, to.“quiet the defendants’ possession,” is a title equivalent to a patent, against the owner who'still holds the patent; for the United States, never having issued it, are as fully the holders of it as their grantees could be. Now when has it been heard that a Register’s certificate is to prevail against a patent ? The acts-of Congress, from the beginning of the government, recognise a patent as the complete evidence of title to the public domain; and nothing else. 1 Story’s Laws, 424. 787. 818. 2 Story’s Laws, 896.1022.1067.1201.1239. 1417. The holder of an unpatented location cannot dispossess him who holds under a patent; much less can he dispossess the United States, who have never issued a patent. Térret v. Taylor, 9 Cranch, 43. Polk v. Wendell, 9 Cranch, 87. Russell v. Transylvania University, 1 Wheaton, 432. M'Clung v. Silliman, 6. Wheaton; 605. Ross v. Doe, 1 Peters, 664. .Bagnell v. Broderick, 13 Peters, 450. Jackson v. Wilcox, 13 Petérs, 517.. Ritchie v. Woods, 1 Wash. C. C. R, 11'. Depassau v. Winter, 7 Louis. R. 6. Boatner v. Ventris, 8 Néw Series, ,653. ■ It was never the intention of the law, from which alone these certificates gain any force, that they should take the place, of patents. ^ They are inferior' evidence. They establish certain facts; they do not confer title. Could the District Judge change their character ? Could he make them what the law' never intended them to be ? He should have dismissed the plaintiffs’ application, if he deemed the evidence insufficient to sustain it; but he had no right to,decree the sufficiency of the defendant’s title. In this there was error.</p> <p>II. The defendant, Fitzgerald, could not, at the time the suit was brought, establish any possessory title under the pre-emption law'of 1834. He had neither done what was necessary to entitle him to its privileges, nor had he, in fact, received from any authorized officer, any legal recognition to that effect. He was not a.settler; he had made no improvement Or cultivation; he had offered no proof satisfactory to the Register and Receiver; he had made no entry; and he had received no certifieaté. A settler is a person who takes possession, for the purposes of cultivation ; who personally occupies the land, and makes it his home, not occupying .it for a cause merely temporary; he must use it for farming purposes. In the case of Henderson v. Poindexter, 12 Wheaton, 530, this Court considered settlement as meaning an actual bona fide residence. Now the evidence in this, case shows that the settlement of Fitzgerald bore no resemblance, whatever, to such occupation. Even if he ciiltivated this remote, inhospitable strip of land, Jutting into the ocean, it was done with' no such intention on his part. He went there from necessity, as a..public officer, for a public purpose. Hé'did not go even voluntarily; he was sent there. Can a public officer, sent for a public object, on to a part of the public domain, be considered as a settler ? Could a body of troops, stationed through the winter on. public land near the frontiers, acquire the pre-emption rights of settlers ? Do the commanders of temporary posts acquire all those rights ? Fitzgerald admits that he went to this place as the boarding officer; that he took possession as such; that he occupied the cabin as such. • The Collector proves that, in such capacity, he allowed such occupation. If this gives a pre-emption right, there is no occupation of public soil, for public purposes, by an officer sent upon them, that will not give it.</p> <p>Nor did Fitzgerald make any improvement. The house was there when he was sent to the station; and it is evident that, so far from'seeking to improve it, he used it merely as a temporary residence, in the intervals of his duty as the boarding officer. ’</p> <p>But it is not sufficient that these things were done, had that been the. case. They must have been proved, within the time limited- by law, “to the satisfaction of the Register and Receiver,” agreeably to the established rules. Now of this having been done, there is not the slightest evidence. The signature of the Register does not appear to a single paper to that effect; that of the Receiver is not affixed to any other document than a mere receipt for money paid. Surely the examination by these officers, of the facts on which so great a privilege rests, as-that which the law accords to pre-emptors, is not to-be thus lightly dispensed with. 2 Birchard’s Land Laws, 589. Nor does this defect stop here. So far as the record enables us to discover, Fitzgerald never made any entry at all. There is evidence -of an application to enter; but there the record stops. There is no certificate of its-having been made or allowed. -The document, which, in the case of Jackson v. Wilcox, 13 Peters, 505, .showed so fully a compliance with all the necessary forms, is .here totálly want-' ing.</p> <p>It is unnecessary to comment upon another fact connected with this pre-emption-claim: that is, the right to a float derived ' from an alleged separate settlement by Fitzgerald’s own wife; because the present decree of the Court does not extend to the entry under that claim.</p> <p>III. But suppose that the defendant’s right to a pre-emption,. was not affected, for any of the reasons stated; could it be located on this tract of land ? The terms of the law are very-broad ; they positively exclude, from any such location, all land reserved for' the use of the United States; or reserved from sale by any act of Congress; or appropriated for any public purpose. 4 Story’s Laws, 2213. Now what appropriation. for a public purpose can be more complete than this very act of Fitzgerald’s. He is sent to the land by the Collector, for a public purpose; necessarily occupies it for that purpose. Is not this an appropriation? , In fact, the whole evidence shows that for years and years béfore it had been so used; so appropriated, ■ The testimony of the Collector at New Orleans is positive upon this point. The language of this Court, in the case ■of Jackson a. Wilcox, 13 Peters, 511, 512, shows that, wherever there is a real and permanent use of a part of the public domain for' a public purpose, it- is such an appropriation of it as the law ■intended. It is quite apparent, from the words of the act, that' they were inserted for the express purpose of protecting from pre-emption settlements, such spots on the public domain as the public convenience had made it necessary from time to time to use; and which, as all the land belonged to the United States, operated injuriously to no one. The act reserved from pre-emption, in express terms, every tract that had been set apart for the use of the United States, either by the President, (of course embracing the acts of the executive departments, under his actuál or implied direction,) or by act of Congress. It then proceeded to reserve an additional, class, that-is, such spots as were then actually appropriated, or used for a public purpose. -Of course, the positive preservation by the executive, or by law, was not necessary in the latter class of cases. This was meant to refer to cases of actual appropriation; not arising from definite and specific acts, as distinguished from .reservations made by the former.</p> <p>But, in fact, there does appear to have been an express resei vation of this piece of ground, by the Secretary of the Treasury. As soon as information reached the General Land Office, of Fitzgerald’s application, the Register was informed that “ the Secretary of the Treasury had directed that .tract of land to- be' reserved from sale, as it was important for the use of the custom house,, at New Orleans,” This language has evident reference, not to a reservation then first made, but to one that had been previously made, for a well ascertained object, of which the importance was fully recognised and already known. The lighthouse, too, though on an island separated by a narrow channel from the particular spot where the cabin occupied by Fitzgerald stood, was, in fact, to be regarded as a part of the same premises. It was all a piece of land' embracing a few acres in a narrow circuit, stretching into the ocean, where, alone these public objects connected with commerce could be attained. These acts, if not reservations within the express terms of the act of Congress, are yet clearly such as are held to be sufficient, under the opinion of this Court, in the case of Jackson v. Wilcox, 13 Peters, 498.'</p> <p>- On the whole, therefore, it is submitted that the Court below, erred, in giving, by its decree, an absolute title to the defendant, instead of merely dismissing the plaintiff’s bill; and that, on the merits, the defendants had shown neither a sufficient title under the pre-emption law, nor a right to locate it upon the land'they claimed.</p> <p>Mr. Bell, for the defendants in error, contended that the land in controversy was, in 1833, part of the public land of the United States, and was subject to entry and sale, under pre-emption rights. When John Fitzgerald went to the'land, and took possession of the' building upon it, he did so for his own personal accommodation, and not for the use of the United States; while it was certainly the province, in all justice, of the government, to provide a residence for the boarding officer; at a place most convenient for the performance of his duty ; yet, having failed to do so, it became necessary for him to procure one" for himself. In this he did not act for the government; he had no authority to act for them; and all he did, was at his own private cost, and . enured to his own personal benefit.</p> <p>May not a public officer purchase public lands for his individual account ? ,Ma,y'hé nót cultivate and in prove public land, and entitle himjself to the privileges and rights of a pre-emptor ? The questions can receive"but one answer: although an officer in the service of the United States, no exclusion from such rights exists by law. He enjoys them in common with every citizen of the United States.</p> <p>In fact, no appropriation of this land for public purposes, has ever been made. Although ■ the directions of the Secretary' of the Treasury to reserve this land from sale, were given after the defendants in error had acquired a full title to the land; yet, if they had not acquired such title, the public lands cannot be appropriated to the use of the United States, by any act of the ■Secretary of the Treasury, unless specially thereto authorized ■by law.</p> <p>The public lands are, by the Constitution, placed in the hands of Congress; and an act of Congress is required to authorize any and every severance of any part of them from, the great body of the public domain, for the special use of the government. While the President of the United States is authorized, in particular cases, to appropriate portions of the land, for the purpose, and use of the government, no such right or privilege is given to the head-of the Treasury Department.</p>

Held: that the claim is riot supported by the laws of the United States; and that no cdjpmissions are chargeable to the United States on the moneys disbursed by the agent, of the United States for removing and subsisting the Cherokee Indians. The case falls difectly within the act of 30th June, 1834, ch. 162, for organizing the Indian Department.

Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841), was a decision of the United States Supreme Court.

(Real Audiencia of Panama, New Spain, suppressed)