possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the covenant. Ib. 61
5. Manner in which a person who acts as agent for another must execute a deed in order to avoid a personal responsibility. Ib. note a, 56 6. Cases illustrative of the doctrine that a trustee, agent, &c., who binds himself by a personal covenant, is liable at law for a breach of that covenant, although he describe him- self as covenanting as trustee. Ib. note a,
7. Distinction as to public agents. Ib. 57
1. The courts of the U.S. have exclu- sive jurisdiction of all seizures made on land or water, for a breach of the laws of the U. S.; and any in- tervention of a state authority, which, by taking the thing seized out of the hands of the U. S. offi- cer, might obstruct the exercise of this jurisdiction, is illegal. Slocum v. Mayberry et al. 1.9
2. In such a case the court of the U. S., having cognizance of the seizure, may enforce a re-delivery of the thing, by attachment or other sum- mary process. Ib. 3. The question under such a seizure, whether a forfeiture has been actu, ally incurred, belongs exclusively to the courts of the U. S., and it de- pends upon the final decree of such courts, whether the seizure is to be deemed rightful or tortious. Ib. 9, 10 4.If the seizing officer refuse to insti- tute proceedings to ascertain the forfeiture, the district court may, upon application of the aggrieved party, compel the officer to proceed
to adjudication, or to abandon the seizure. Ib.
10 5. Under the constitution of the U. S., the power of naturalization is ex- clusively in Congress. Chirac v. Chirac, The jurisdiction of the circuit court of the U.S. extends to a case between citizens of Kentucky, claiming lands exceeding the value of five hundred dollars, under different grants, the one issued by the state of Kentucky, and the other by the state of Vir- ginia, upon warrants issued by Vir- ginia, and locations founded there on prior to the separation of Ken- tucky from Virginia. It is the grant which passes the legal title to the land; and if the controversy is founded upon the conflicting grants of different states, the judicial pow- er of the courts of the U. S. ex- tends to the case, whatever may have been the equitable title of the parties prior to the grant. Colson et al. v. Lewis, 377
1. It seems that where a native citizen of the United States emigrated be- fore a declaration of war to a neu- tral country, there acquired a do- micil, and afterwards returned to the U, S. during the war, and re- acquired his native domicil, he be- came a redintegrated American ci- tizen; and could not afterwards, flagrante bello, acquire a neutral domicil by again emigrating to his adopted country. The Dos Her 77.98 2. Effect of domicil on national cha- racter. Appendix, note I. 27, 28, 29 See PRACTICE, 10.
1. The act of the 23d July, 1813, im- posing a duty according to the ca- pacity of the still, on all stills em- ployed in distilling spirits from do-
mestic or foreign materials, and in- flicting a penalty of 100 dollars and double duties, for using any still or stills, or other implements, in dis- tilling spirituous liquors, without first obtaining a license as required by the act, does not extend to the rectification, or purification, of spi- rits already distilled. The United States v. Tenbroek, 248.
2. The word insolvency, mentioned in the duty act of 1790, ch. 35. sec. 45.; and repeated in the act of 1797, ch. 75. sec. 5. and of 1799, ch. 123. sec. 65. means a legal insolvency, which, whenever it occurs, the right of preference arises to the United States as well as in the other spe- cified cases to which the acts of 1797 and 1799 have extended the cases of insolvency. Thelusson et al v. Smith, 596. 424 3. But if before the right of preference has accrued to the United States, the debtor has made a bona fide Conveyance of his estate to a third person, or has mortgaged it to se. cure a debt, or if his property has been seized under an execution, the property is devested out of the debtor, and cannot be made liable to the United States. Ib. 4. A judgment gives to the judgment creditor a lien on the debtor's lands, and a preference over all subse- quent judgment creditors. But the law defeats the preference in fa- vour of the United States, in the cases specified in the act of 1799, ch. 128. sec. 65. Ib.
ELECTION AND SATISFAC- TION.
1. Where a seizure was made under the 11th section of the Embargo act of April, 1808, it was determin- ed, that no power is given by law to detain the cargo if separated from the vessel, and that the owner had a right to take the cargo out of the
vessel, and to dispose of it in any way not prohibited by law; and in case of its detention, to bring an ac- tion of replevin therefor in the state court. Slocum v. Mayberry, 1. 10 In seizures under the embargo laws, the law itself is a sufficient justifi- cation to the officer where the dis- charge of duty is the real motive, and not the pretext for detention; and it is not necessary to show pro- bable cause. Otis v. Walier, 18. 21 But the embargo act of the 25th of April, 1808, related only to vessels ostensibly bound to some port in the United States, and a seizure after the termination of the voyage is unjustifiable; and no farther de- tention of the cargo is lawful, than what is necessarily dependent on the detention of the vessel. Ib. 21 It is not indispensable to the termi- nation of a voyage, that a vessel should arrive at the terminus of her original destination; but it may be produced by stranding, stress of weather, or any other cause indu- cing her to enter another port with a view to terminate her voyage bona fide. Ib.
But if a vessel, not actually arriving at her port of original destination, excites an honest suspicion in the mind of the collector that her de- mand of a permit to land the cargo was merely colourable, this is not a termination of the voyage so as to preclude the right of detention. Ib.
6. Under the embargo act of the 22d December, 1807, the words "an embargo shall be laid," not only im- posed upon the public officers the duty of preventing the departure of registered or sea-letter vessels on a foreign voyage, but, consequently, rendered them liable to forfeiture under the supplementary act of the 9th January, 1808. The William King, 148. 153 7. In such case, if the vessel be actu- ally and bona fide carried by force to a foreign port, she is not liable to forfeiture. Ib.
8. But if the capture, under which it
is alleged the vessel is compelled to go to a foreign port, be fictitious
1. Where a witness, a clerk to the plaintiff, swore that the several ar- ticles of merchandize contained in the account annexed to his depo- sition, were sold to the defendant by the plaintiff, and were charged in the plaintiff's day-book by the deponent and another person, (since dead,) and that the deponent deli- vered the goods, and farther swore, that he had referred to the original entries in the day-book; held, that this was sufficient evidence to prove the sale and delivery of the goods. M'Coul v. Lekamp's Adm.
111. 116 2. Law of France as to evidence of tradesmen's books. Ib. note a, 117 3. English cases on the same subject. Ib. note a,
4. Rules of practice in the United States. Ib. note a,
118 5. Interest in the subject matter of the suit,a fatal objection to a witness by the civil law. Laidlaw et al v. Organ, note e,
192 6. The answer of one defendant to a bill in chancery cannot be used as evidence against his co-defendant; and the answer of an agent is not evidence against bis principal, nor are his admissions in pais, unless they are a part of the res gesta. Leeds v. The Marine Ins. Comp. 380. 383
1. Under the act of the 6th July, 1812, "to prohibit American vessels from proceeding to or trading with the enemies of the United States, and for other purposes," living fat ox- en, &c. are articles of provision and munitions of war, within the true intent and meaning of the act.
1. Where a seizure for a breach of the laws of the United States is finally adjudged wrongful, and without probable cause, by their courts, the party may proceed, at his election, by a suit at common law, or in the instance court of admiralty, for da- mages for the illegal act. But the common law remedy in such case must be sought for in the state courts; the courts of the United States having no jurisdiction to de- . cide on the conduct of their officers, in the execution of their laws, in suits at common law, until the case shall have passed through the state courts. Slocum v. Mayberry et al.
The jurisdiction of the circuit court having once vested between citi- zens of different states, cannot be devested by a change of domicil of one of the parties, and his removal into the same state with the ad- verse party, pendente lite. Mor- gan's heirs v. Morgan et al.
290.297 3. This court has not jurisdiction to issue a writ of mandamus to the re- gister of a land-office of the United States, commanding him to enter the application of a party for cer- tain tracts of land, according to the 7th section of the act of the 10th of May, 1800,"providing for the sale of the lands of the United States northwest of the Ohio, and above the mouth of Kentucky river," which mandamus had been refused by the supreme court of the state of Ohio, upon a submission by the re- gister to the jurisdiction of that court, being the highest court of law or equity in that state. MClu- ny v. Silliman, 369 4. Cases where the courts of the Uni-
ted States have, or have not, autho- rity to issue writs of mandamus. Ib. note a, 370
1. It is essential to the validity of an entry, that the land intended to be appropriated should be so described as to give notice of the appropria- tion to subsequent locators. John- son v. Pannel's heirs. 206. 208 2. In taking the distance from one point to another on a large river, the mea- surement is to be with its meanders, and not in a direct line. Ib. 211 3. In ascertaining a place to be found
by its distance from another, the vague words "about" or 66 nearly," and the like, are to be rejected, if there are no other words rendering it necessary to retain them; and the distance is to be taken positively. Ib. 211 4. Reasonable certainty is required, both in the descriptive call and the locative call of an entry: if the de- scriptive call will not inform a subse- quent locator in what neighbour- hood he is to search for the land, the entry is defective, unless the particular object is one of sufficient notoriety. If, after having reached the neighbourhood, the locative ob- ject cannot be found within the li- mits of the descriptive calls, the ea- try is also defective. A single call may, at the same time, be of such a nature, (as, for example, a spring of general notoriety.) as to constitute within itself a call of description and of location; but if this call be ac- companied with another, such as a marked tree at the spring, it seems
to be required that both should be satisfied. ть. 211 5. The call for an unmarked tree of a kind which is common in the neigh- bourhood of a place sufficiently de- scribed by the other parts of the en- try to be fixed with certainty may be considered as an immaterial call. Ib. 212 6. Therefore, where the entry was in the following words, "D. P. enters 2,000 acres on a treasury warrant on the Ohio, about twelve miles below the mouth of Licking, beginning at a hiccory and sugar tree on the river bank, running up the river from thence 1,060 poles, thence at right angles to the same, and back for quantity," it was held that the call for a sugar tree might be declared immaterial, and the location be sus- tained on the other calls. Ib. 219 7. The entry in this case was decreed to be surveyed, beginning 12 miles below the mouth of Licking on the bank of the Ohio, and running up that river 1,060 poles; which line was to form the base of a rectangu- lar parallelogram, to include 2,000 acres of land. Ib.
ib. 8. An error in description is not fatal in an entry if it does not mislead a subsequent locator. The following entry, "H. M. enters 1637 acres of land on a treasury warrant, No. 6,168, adjoining Chapman Aston on the west side, and Israel Christian on the north, beginning at Chris- tian's north-west corner, running thence west 200 poles; thence north parallel with Aston's line until an east course to Aston's line will in- clude the quantity," was held valid, although no such entry as that re- ferred to could be found in the name of Aston, but the particular descrip- tion clearly pointed out an entry in the name of Chapman Austin, as the one intended, and this, together with Christian's entry, satisfied the calls of H. M.'s entry. Shipp v. Mil- ler's heirs. 9. It is a general rule that when all
the calls of an entry cannot be com- plied with, because some are vague or repugnant, the latter may be re- jected or controlled by other mate- rial calls, which are consistent and
certain. Course and distance yield to known, visible, and definite ob- jects; but they do not yield, unless to calls more material and equally certain. Ib. 321 10. It is a settled rule that where no other figure is called for in an entry, it is to be surveyed in a square, coinci- dent with the cardinal points, and large enough to contain the given quantity, and that the point of be- ginning is deemed to be the centre of the base line of such square. Ib. 323 11. The act of Kentucky of 1797, taken in connexion with preceding acts, declaring that entries for land shall become void, if not surveyed before the first day of October, 1798, with a proviso allowing to infants and femes covert three years after their several disabilities are removed to complete surveys on their entries; held, that if any one or more of the joint owners be under the disability of infancy or coverture, it brings the entry within the saving of the provi- so as to all the other owners. Dis- tinction between this statute and a statute of limitations of personal ac- tions. Ib. 323
2. A call for a spring branch generally, or for a spring branch to include a marked tree at the head of such spring, is not a sufficiently specific locative call; and where farther cer- tainty is attempted to be given by a call for course and distance, and the course is not exact, and the distance called for is a mile and a half from the place where the object is to be found, the entry is void for uncertain- ty. Ib. 326 13. By the act of incorporation of the Union Bank of Georgetown, ch. 86. sec. 11. the shares of any individual stockholder are transferrable only on the books of the bank, according to the rules (conformably to law) esta- blished by the president and direc- tors; and all debts due and payable to the bank, by a stockholder, must be satisfied before a transfer shall be made. unless the president and direc- tors should direct to the contrary. Held, that no person could acquire a legal title to any shares, except
under a regular transfer, according to the rules of the bank; and if any person takes an equitable assign- ment, it must be subject to the rights of the bank, under the act of incor- poration of which he is bound to take notice. The Union Bank v. Laird, 390
A creditor may lawfully take and hold several securitics for the same debt, and cannot be compelled to yield up either until the debt is paid; therefore, the bank has a right to take security from one of the parties to a bill or note dis- counted by it, and also to hold the shares of another party as security for the same. Ib. 394
1. Where the owner of certain slaves, and also part owner of a vessel, bir- ed the slaves to the master of the vessel, to proceed as mariners on board, on a voyage, at the usual wa- ges, and without any special contract of hiring; held, that the master, ha- ving acted with good faith, was not responsible for the escape of the slaves in a foreign port, which was one of the contingent termini of the voyage; and, consequently, within the hazards to which the owner knew his property might be exposed; al- though it was doubtful whether the master had strictly pursued his orders in going to such port. Beverly v. Brooke. 100 Duties of the master to the ship-own- er, and extent of his responsibility. Ib. note b. Effect of the illegal acts of the master upon the owner's property, and as the agent of the cargo, Appendix,
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