old age, and other circumstances, as to be liable to imposition, although his weakness does not amount to insanity.

poses.

Harding v. Handy,

(125) 435 4. The same jurisdiction may be exercised where one of the heirs at law has, with the consent of the others, taken such a deed, upon an agreement to consider it as a trust for the maintenance of the grantor, and, after his death, for the benefit of his heirs, and the grantee refuses to perform the trust. Id. (Ib.) 435 5. Under what circumstances such a conveyance may be allowed to stand as security for actual advances and charges, and set aside for all other purId. (126) 436 6. In such a case, not depending on the absolute insanity of the grantor at the time of executing the conveyance, the court may determine the question of capacity without directing an issue. Id. (125) 435 7. The verdict of a jury as to the sanity of the grantor at the time of executing such a conveyance, would not be conclusive, the court being competent to determine for itself the degree of weakness, or of imposition, which will induce it to set aside the instrument.

(126) 436 9. Rule of practice on exceptions to the master's report. Id. (127) 436 10. Testimony of the parties, how far admissible in accounting before the master. Id.

(Ib.) 436

11. In a suit in equity brought by heirs at law to set aside a conveyance obtained from their ancestor by fraud and imposition, a final decree for the sale of the property cannot be pronounced until all the heirs are brought before the court as parties, if they are within the jurisdiction. Id. (132) 437 12. If all the heirs cannot be brought before the court, the undivided interest of those who are made parties may be sold. Id.

(133) 437 13. In general, all encumbrancers must be made parties to a bill of foreclosure; yet, where a decree of foreclosure and sale was made and executed at the suit of a subsequent mortgagee, and with the consent of the mortgageor, it not appearing to the court that there was any prior encumbrance, the proceedings will not be set aside upon the application of the mortgageor, in order to let in the prior mortgagee, who ought regularly to have been made a party, unless it be necessary to prevent irremediable mischief.

Finley v. Bank of the United States, (304) 480 14. Quære, Whether such a practice be admissible in any case. Id.

(Ib.) 480 15. But, in such a case, the prior encumbrancers are not bound by the decree in a suit to which they are not parties, and the purchasers under the sale take subject to the prior liens. Id. (Ib.)

480

16. In general, the validity of patent of lands can be impeached, for causes anterior to its being issued, in a court of equity only. But where the grant is absolutely void, as being issued without authority, or against the positive prohibitions of statute, its validity may be contested at law. Patterson v. Winn, (380, 382) 500

17. Practice of a court of equity as to an award. The court either enforces the award as made, or sets it aside if in any respect defective; but it is not its practice to confirm the award so far as it extends, and to supply omissions by decree of the court. (466) 521 18. Where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filled by the defendant. (Ib.) 521

Carnochan v. Christie,

Id.

CHANCERY-12.

1. Where an equity cause may be finally decided as between the parties litigant, without bringing others before the court, who would, generally speaking, be necessary parties, such parties may be dispensed with in the Circuit Court, if its process cannot reach them, or if they are citizens of another state. Mallow v. Hinde, (193) 599

2. But if the rights of those not before the court are inseparably connected with the claim of the parties litigant, so that a final decision cannot be the absent parties, the peculiar constitution of the made between them without affecting the rights of Circuit Court forms no ground for dispensing with such parties.

Id.

(Ib.) 599

the purposes of justice require it, retain jurisdic3. But the court may, in its discretion, where tion of the cause on an injunction bill as between the parties regularly before it, until the plaintiffs have had an opportunity of litigating their controversy with the other parties in a competent tribunal; and if it finally appear by the judgment of such tribunal, that the plaintiffs are equitably entitled to the interest claimed by the other parties, may proceed to a final decree upon the merits. Id. (Ib.) 599

4. A question of fact upon a bill filed to set aside the sale and assignment of a land warrant. upon the ground that it was obtained by fraudulent misrepresentation, and taking undue advantage of the party's imbecility of body and mind. Conner v. Featherstone, (199) 601 5. Evidence deemed insufficient, and bill dismissed. Id.

(Ib.) 601 6. Rule of equity, that where land is sold as for a certain quantity, a court of equity relieves if the quantity be defective, only applicable to contracts for the sale of land in a settled country. where the titles are complete, the boundaries determined, and the real quantity known, or capable of being ascertained by the vendor.

Dunlap v. Dunlap, (575, 579) · 733. 735 7. Relief in equity against a judgment at law. upon certain bonds given for the indemnity of the obligee, as indorser of notes drawn by the obligor. the consideration having failed.

Scott v. Shreeve,

(605) 744 8. The assignee of such bonds takes them subject to all equities existing between the original parties. Id. (608) 745 See Lex Locl, 1.

COLLECTOR-1 -10. See Admiralty, 14, 15. COLLECTOR-11.

See Construction of Statute.

CONSTITUTIONAL LAW-9.

1. The acts of the legislature of the state of New York, granting to Robert R. Livingston and Robert Fulton, the exclusive navigation of all the waters within the jurisdiction of that state, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the constitution of the late commerce so far as the said acts prohibit vesUnited States which authorizes Congress to regusels licensed, according to the laws of the United States for carrying on the coasting trade, from navigating the said waters by means of fire or steam. Gibbons v. Ogden, (1, 186) 23, 67 2. The power of regulating commerce, extends to the regulation of navigation.

Id.

(189) 68

6. State Inspection laws, health laws, and laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are not within the power granted to Congress. Gibbons v. Ogden, (203) 71 7. The laws of New York, granting to R. R. L. and R. F. the executive right of navigating the waters of that state with steamboats, are in collision with the acts of Congress regulating the coasting trade, which, being made in pursuance to the constitution, are supreme, and the state laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the states.

Id.

Id.

(212, 214) 74

9. The power of regulating commerce extends to navigation carried on by vessels exclusively employed in transporting passengers. (215, 216) 74, 75 10. The power of regulating commerce, extends to vessels propelled by steam or fire, as well as to those navigated by the instrumentality of wind and sails. (219) 75 11. The act of incorporation of the bank of the United States, which gives the circuit courts of the United States jurisdiction of suits by and against the bank, is warranted by the 3d article of the constitution, which declares, that "the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

Osborn v. U. S. Bank,

(738) 204 12. The circuit courts of the United States have jurisdiction of a bill brought by the Bank of the United States, for the purpose of protecting the bank in the exercise of its franchises, which are threatened to be invaded under the constitutional laws of a state; and, as the state itself cannot, according to the 11th amendment of the constitution, be made a party defendant to the suit, it may be maintained against the officers and agents of the state, who are entrusted with the execution of such laws. Id.

(Ib.) 204 13. A state cannot tax the Bank of the United States; and any attempt, on the part of its agents and officers, to enforce the collection of such tax against the property of the bank, may be restrained by injunction from the Circuit Court. Id.

CONSTITUTIONAL LAW-10.

(Ib.) 204

1. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States; and the states have no authority to control those proceedings, except so far as the state process acts are adopted by Congress, or by the courts of the United States under the authority of Congress.

Weyman v. Southard, (1, 21) 253, 257 2. The proceedings on executions, and other process, in the courts of the United States, in suits at common law, are to be the same in each state, respectively, as were used in the Supreme Court of the state in September, 1789, subject to such alterations and additions as the said courts of the United States may make, or as the Supreme Court of the United States shall prescribe by rule to the other Id.

courts.

(Ib.) 253, 257 3. A state law regulating executions, enacted subsequent to September, 1789, is not applicable to executions issuing on judgments rendered by the courts of the United States, unless expressly adopt ed by the regulations and rules of those courts. Id. (Ib.) 253, 257 4. The 34th section of the judiciary act of 1789. c. 20, which provides "that the laws of the several states, except,' etc., "shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply," does not apply to the process and practice of the courts. It is a mere legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci. (24) 258

Id.

5. The statutes of Kentucky concerning executions, which require the plaintiff to indorse on the execution that bank notes of the Bank of Kentucky, or notes of the Bank of the Commonwealth of Kentucky, will be received in payment, and, on. his refusal, authorize the defendant to give a replevin bond for the debt, payable in two years, are not applicable to executions issuing on judgments rendered by the courts of the United States. Id. (Ib.) 258

6. The case of Palmer v. Allen, 7 Cranch, 550, reviewed and reconciled with the present decision. Id. (37) 261

7. The provision in the process act of 1792, c. 137 (xxxvi.), authorizing the courts of the United States to make alterations in the regulations concerning executions, and other process issuing from those courts, is not a delegation of legislative authority, and is conformable to the constitution. Id.

(42) 262

8. The act of assembly of Kentucky of the 21st of December, 1821, which prohibits the sale of property taken under executions for less than three-fourths of its appraised value, without the consent of the owner, does not apply to a venditioni exponas issued out of the Circuit Court for the district of Kentucky. Bank of United States v. Halstead,

(51) 264 9. The laws of the United States authorize the courts of the Union so to alter the form of the process of execution used in the Supreme Courts of the states in 1789, as to subject to execution lands and other property, not thus subject by the state laws in force at that time.

Id.

(Ib.) 264

10. The process acts of 1789 and 1792, expressly extending to a capias, held that Congress must be understood as having adopted that process as onethat was to issue permanently from the courts of the United States, whenever it was in use in September, 1789, as a state process. Bank of the United States v. January, Note 1, (66) 269

11. Quære, How far a will of lands, duly proved and recorded in one state, so as to be evidence in the courts of that state, is thereby rendered evidence in the courts of another state (provided the record, on its face, shows that it possesses all the solemnities required by the laws of the state where the land lies), under the 4th art. sec. 1, of the constitution of the United States. Darby's Lessee v. Mayer,

(465, 469) CONSTITUTIONAL LAW-11.

367, 368

3. An indictment under the crimes act of 1790, c. 36 (IX.), s. 37, for infracting the law of nations. by offering violence to the person of a foreign minister, is not a case "affecting ambassadors, other public ministers and consuls," within the 20 section of the 3d article of the constitution of the United States.

The United States v. Ortega, (467) 521 4. The circuit courts have jurisdiction of such an offense, under the 11th section of the judiciary act of 1789, c. 20. (Ib.) 521

Id.

LEX LOCI-11.

Five years' bona fide possession of a slave constituting a title by the laws of Virginia, under which a plaintiff may recover in detinue, such a possession is a legal defense to a purchaser under such possessor, in the courts of Tennessee. Although the rule of limitation applicable to this species of property is, strictly speaking, a part of the lex fori of Virginia, yet as it constitutes the title of the vendor to the property, it is a bar to an action against the vendee in the courts of another state. Shelby v. Guy, (361, 371) 495, 497

not be favored.

Hughes v. Edwards, (489, 497) 142, 144 2. Where the mortgagee brings his bill of foreclosure, the mortgage will, after the same length of time, be presumed to have been discharged, unless circumstances can be shown to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgageor that the mortgage is still subsisting, and the like. Id. (497, 498) 144 3. A bonæ fidei purchaser under the mortgageor, with actual notice of the mortgage, or constructive notice by means of a registry, can only protect himself in equity by the lapse of time, under the same circumstances which would afford a protection to the mortgageor.

Id.

See Local Law, 2, 3, 12, 13.

(499) 145

LIMITATION OF ACTIONS-10.

1. Although the statutes of limitation do not apply, in terms, to courts of equity, yet the period of limitation which takes away a right of entry, or an action of ejectment, has been held by analogy to bar relief in equity, even where the period of limitation for a writ of right, or other real action, had not expired.

Elmendorf v. Taylor, (152, 168) 289, 294 2. Where an adverse possession has continued for twenty years, it constitutes a complete bar in equity, whereever an ejectment would be barred if the plaintiff possessed a legal title. Id. (Ib.) 289, 294

2. If it be connected with circumstances which, in any manner, affect the claim, or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration; or, if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown. (Ib.) 481

Id.

3. Thus, where an action was brought, on & promise in writing to deliver a quantity of powder, and the original assumpsit being satisfactorily proved, the defendant relied upon the statute of limitations; and one witness deposed that the defendant told him that the plaintiff need not have sued him; for if he had come forward and settled certain claims which defendant had against him, the defendant would have given him his powder. To another witness defendant said that he should be ready to deliver the powder whenever the plaintiff settled a suit which Dr. E. had brought against him, etc. Held, that those declarations did not amount to an unqualified and unconditional acknowledgment of the debt, but that the plaintiff ought to have proved a performance or a readiness to perform the condition on which the new promise was made. Id. (Ib.) 481 4. Note upon the current of authorities as to the interpretation of the statute of limitations.

Id. Note 1,

Shelby v. Guy,

(316) 484 5. The terms "beyond seas," in the saving clause of a statute of limitations, are to be construed as equivalent to without the limits of the state where the statute is enacted. (361, 366) 495, 496 6. The former decision of this court, upon the construction of the saving clause of the statute of limitations relating to persons without the limits of the state, in Murray v. Baker (ante, Vol. III., p. 541), revised and confirmed. (366) 496

Id.

7. Quære, How far the principle of the above decision has been received in the local courts of Tennessee.

Id.

See Local Law, 9, 13.

LIMITATION-12.

(367) 496

1806, ch. 21, although the condition of the mar1. Under the 4th section of the act of April 10th, shal's bond is broken by his neglecting to bring the money into court directed to be so brought in, or be suspended by appeal, so that the party injured to pay it over to the party, yet, if the proceedings has no right to demand the money, or to sue for crued, so as to bar it, if not commenced within the recovery of it, his right of action has not ac

six years.

Montgomery v. Hernandez,

(129, 133) 575, 576 2. An acknowledgment of the debt by the perceased, will not take the case out of the statute of sonal representatives of the original debtor, de

limitations.

Mason v. Muncaster, (445, 454) 131, 133 5. The parishioners have, individually, no right or title to the glebe lands; they are the property of the parish in its aggregate or corporate capacity, to be disposed of, for parochial purposes, by the vestry, who are the legal agents and representatives of the parish.

Id.

(468) 137

9. The land between Ludlow's and Roberts' line was not withdrawn from the territory liable to be surveyed for military warrants, by any act of Congress passed before the act of June 26th, 1812, ch. 432 (cix.) Id.

(480) 140 10. The land law of Virginia of 1779 makes a pre-emption warrant superior to a treasury warrant, whenever they interfere with each other, unless the holder of the pre-emption warrant has forfeited that superiority, by failing to enter his warrant with the surveyor of the county, within twelve months after the end of the session at which the land law was enacted; and on that period having expired, and being prolonged by successive acts, during which time there was one interval between the expiration of the law and the act of revival, the original right of the holder of the pre-emption warrant was preserved, notwithstanding that interval, the entry of the holder of the treasury warrant not having been made during the same interval.

Stevens v. M'Cargo,

(502) 145

11. A question, under the registry acts of Tennessee, whether a junior conveyance registered, should take precedence of a prior unregistered deed: Held, that the registry did not, under the circumstances, vest the title against the elder deed. Love v. Simms, (515) 149

12. By the statute of limitations of Tennessee of 1797 a possession of seven years is a protection, only when held under a grant, or under mesne conveyances which connect it with a grant.

Walker v. Turner,

(541) 155 13. A sheriff's deed, which is void for want of jurisdiction in the court under whose judgment the sale took place, is not such a conveyance as that a possession under it will be protected by the statute of limitations.

Id. (545) 156 14. Secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party; and this rule of evidence is not dispensed with by the local statutes of Kentucky, which provide that no person shall be permitted to deny his sig nature, as maker or assignor of a note, in a suit against him, unless he will make an affidavit denying the execution or assignment. These statutes do not dispense with proof of the existence of the instrument, or of the right of the party to hold it by assignment.

Sebree v. Dorr,

(558) 160 15. Under the following entry, "H. R. enters, 2,000 acres in Kentucky, by virtue of a warrant for military services performed by him in the last

up each fork for quantity," it appeared in evidence, that at the first fork of Licking, the one fork was known and generally distinguished by the name of the South Fork, and the other by the name of the main Licking, or the Blue Lick Fork, and that some miles above this place the South Fork again forked: Held, that the entry could not be satisfied with lands lying in the first fork.

Meredith v. Picket,

(573) 163

16. In such a case, the entry could not be explained, and the survey supported, by oral testimony. The notoriety and names of places may be shown by such testimony, but the words of an entry are to be construed by the court as any other written instrument.

Id.

(575) 164

17. The acts of Assembly of North Carolina, passed between the years 1783 and 1789, invalidate all entries, surveys, and grants of land within the Indian territory, which now forms a part of the territory of the state of Tennessee. But they do not avoid entries commencing without the Indian boundary, and running into it, so far as respects that portion of the land situate without their territory. Danforth v. Wear, (673) 188

ing the removing of warrants which had been lo18. The act of North Carolina of 1784, authorizcated upon lands previously taken up, so as to place them upon vacant lands, did not repeal, by implication, the previously existing laws, which prohibited surveys of land within the Indian boundary. be lands previously subjected to entry and survey. The lands to which such removals are made, must (678) 189

Id.

See Construction of Statute, 13, 14. See Lex Loci.

LOCAL LAW-10.

be recorded at the expiration of three months from 1. In Kentucky, a survey must be presumed to its date, and an entry dependent on it is entitled to all the notoriety of the survey as a matter of record.

Elmendorf v. Taylor, (152, 157) 289, 291 2. An entry in the following words, "W. D. enters 8,000 acres, beginning at the most southwestwardly corner of D. R.'s survey of 8.000 acres, between Floyd's Fork and Bull Skin; thence along the westwardly line to the corner; thence the same course with J. K.'s line north 2 degrees, west 964 poles, to a survey of J. L. for 22,000 acres; thence with Lewis's line, and from the beginning south 7 degrees west till a line parallel with the first line will include the quantity," is a valid entry.

4. The following entry, "I. T. enters 10,000 acres of land, on part of a treasury warrant, No. 9739. to be laid off in one or more surveys, lying between Stoner's Fork and Hingston's Fork, about six or seven miles nearly north-east of Harrod's Lick, at two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's Fork, on the east side of the branch, then running a line from said ash sapling, south 45 degrees east, 1,600 poles; thence extending from each end of this line north 45 degrees east, down the branch, until a line nearly parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims." is not a valid entry, there being no proof that the "two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's Fork," had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, without further aid than is afforded by the information that the land lies between those forks.