going up the Long Lick Creek you approach | riety of the buffalo lick called for in Pinn's enHarrodsburgh. This is a material fact in the inquiry we are making. Harrodsburgh is admitted to have been a place of general notoriety, as are Chaplin's Fork, and the creek called for in Pinn's location. The dividing ridge between Chaplin's Fork and the waters of Beech Fork is also, of necessity, a place of notoriety, since the waters it divides are so. The first call of Pinn's entry is for this dividing ridge; a general call for the ridge would be certainly too vague; but the land must lie on some part of it, and we must look to other calls of the entry to ascertain on what part. It is to 145] be about one and a half miles north of a buffalo lick, on a creek, water of the Beech Fork. Richard Stephens deposes that he had traveled Powell's trace, which leads up the Long Lick fork, three times; understood there was a lick at the place, and thinks he was at it, but was not much acquainted with it. try. Did the validity of this entry depend solely on the notoriety of the lick, a court would find some difficulty in pronouncing it too obscure an object to be noticed by subsequent locators. But, admitting that the lick wants sufficient notoriety to fix of itself the place of Pinn's entry, still, it must be allowed to be an object easily found and easily distinguished, by those who are brought into its neighborhood by the other descriptive parts of the entry. Let us, then, inquire whether this entry does contain such description as would conduct a subsequent locator into its neighborhood. A *The lick is within a mile and a half [*147 of the dividing ridge, on the south side of that ridge, and on a creek, water of Beech Fork. The question, whether this buffalo lick was, This description, which, though not expressly, on the 13th of May, 1780, a place of such noto-is substantially given, precisely fits Long Lick riety as to instruct a subsequent locator how to Creek, and fits no other creek. The location find Pinn's beginning, is one of some doubt. calling to begin a mile and a half north of the The degree of proof which can now be adduced, lick, which lies on the creek, it is sufficiently and ought now to be required, respecting such apparent that no creek is crossed between the a fact, must be affected by many circumstances. lick and the place on the dividing ridge, called The contiguity of stations, the number of for by Pinn's entry; consequently, the lick persons who frequented that particular part must lie on the creek nearest this dividing ridge. of the country, and, above all, the lapse of time, This is what has been since called Long Lick will have their influence. Creek, but which was then without a name, and could be designated only by description. subsequent locator searching for this lick, would look for it, then, on Long Lick Creek. He is informed by the entry, that it lies on a creek so described as to be completely ascertained, about twenty-five miles from Harrodsburgh. part of that creek, then, which lies about twentyfive miles from Harrodsburgh, is the place where he must search for this lick. Walton and Hundly state in their entries that Powell's trace, which leads from Cox's Station to Harrodsburgh, and which arrives at Long Lick Creek a short distance above this lick, goes up the creek five or six miles. James Ray says that the trace leads nearly to its head; and the surveyor in his report states that it leads quite to its head. Long Lick Creek, then, heads between Harrodsburgh and this lick, and is the creek on which the buffalo lick must lie. The entry tells us it lies twenty-five miles from Harrodsburgh. Edward Willis became acquainted with this lick in 1781 or 1782; there were several other licks on the same creek, but this was the largest and most frequented. Its reputed distance from Harrodsburgh was better than twenty miles. Joseph Willis hunted a good deal in that part of the country, and knew this lick; never knew but one buffalo lick, though there are a number of small licks. Its reputed distance from Harrodsburgh was upwards of twenty miles, but does not recollect whether it was a place of notoriety in 1780. John Gritton calls it a buffalo lick, and has been acquainted with it ever since the month of June, in the year 1780. Its reputed distance from Harrodsburgh was from twenty to twen146*] ty-five miles. There are several other small licks on the creek, and one, a tolerably large one, lying on the south fork, a different creek from Long Lick; but no other than this was called a buffalo lick. In a subsequent part of his deposition he is asked whether this lick was a place of notoriety in 1780, and answered that he knew nothing about it at that time. This must be intended for the month of May, 1780, one month sooner than the date of his knowledge, or is a positive contradiction to his first assertion. The *If an object be called for as lying on [*148 a creek, so described as to be distinguished and ascertained, twenty-five miles from a given place of general notoriety, which object has disappeared or cannot be found, it is understood to be settled, in Kentucky, that such location is not void for uncertainty, but is to be surveyed at the distance of twenty-five miles along the creek, from the place of departure. If the object be found and be identified, especially if it be such an object as would readily attract attention, and be easily distinguished, exactness in the distance is not required. On such occasions the disJames Raig says that this lick was generally tance was, in fact, seldom measured by the loknown by the hunters about Harrodsburgh, cator, and could not be measured in a straight prior to the month of May, 1780; that he en-line without the aid of a surveyor. The locator, camped at it with three hunters in the summer in estimating distances, where they are considerof 1776, and hunted about there; that there are several other licks in the neighborhood, but no other buffalo lick; that its reputed distance from Harrodsburgh, in 1781 or 1782, was about 25 miles. able, is governed by general computation; and this is known to subsequent locators. Exactness of distance, then, is introduced for the purpose of giving certainty to locations, which can by no other means be rendered certain. This is all the testimony respecting the noto-Where the object called for is easily found and identified, the want of precision in distance will not defeat the location, unless the difference between the actual and estimated distance be such as to mislead subsequent locators. James Ray says that the estimated distance from Harrodsburgh to the mouth of Hanger Run was 27 or 30 miles, and that the lick was about three miles nearer than the mouth of Hanger Run to Harrodsburgh. James Ray says, that the estimated distance from Harrodsburgh to the lick was about 25 miles, and that it lies 149*] three or four miles above the junction *of the Beech and Chaplin forks. Several witnesses depose that the estimated distance from Harrodsburgh to this lick was upwards of twenty miles. The distance has been measured, and is in a straight line twenty miles and one quarter of a mile. If this difference of distance could in such a case, when unaided, affect the entry, yet there are other circumstances which relieve it from this difficulty. From the lick to the mouth of the creek on which it must lie, cannot in a straight line, amount to two miles. Measured along its meanders, the distance is about three miles. This fact is ascertained by the surveys made of the two entries. The farthest point, then, of this creek from Harrodsburgh, cannot, in a straight line, exceed twenty-two miles. But the lick lies, not at the mouth of the creek, but on the creek. The locater must, then, search for it up the creek, and nearer to Harrodsburgh. The extent of this search for such an object as a buffalo lick, an object to which he must be led by traces of the buffalo, which are in themselves so visible, so distinguishable, so readily found, cannot, without totally disregarding the whole system of Kentucky decisions, be pronounced too great a labor to be imposed on a subsequent locator. He is brought to the mouth of a creek, on which the object for which he searches lies; the object must lie up that creek, and cannot lie far from its mouth. It is an object discern ible and distinguishable at a distance, and calculated from its nature to engage attention. He is within two miles of it on a straight line, and within three miles pursuing the meanders 150*] of the creek; if he does not find *it, it is to his own indolence, not to the obscurity of the object or the difficulty of the search, that the blame attaches. tance required by the location. There is no doubt, then, respecting the identity of this lick. The lick called for in Pinn's entry being found and identified, there can be no difficulty in finding his land. It lies one and a half miles due north of this lick, on the dividing ridge. The place at which the mensuration is to commence being ascertained, the rules established in Kentucky will give form to the land, and direct the manner of making the survey. It is the opinion of this court that the decree of the Circuit Court is erroneous, and ought to be reversed; *and that the cause be re- [*151 manded to that court, with directions to order the land claimed by the appellant to be surveyed conformably to his location. In doing this, a point will be taken one mile and a half due north of the buffalo lick mentioned in Pinn's entry, from which a line is to be extended east and west, to equal distances, until it shall form the base of a square to contain 2,000 acres of land, which is to lie north of the said line. Decree reversed. [Chancery.] J. & T. BARR v. LAPSLEY et al. A question under a bill in equity, to obtain specific performance of an alleged agreement to receive a quantity of cotton bagging, at a specified price, in satisfaction of certain judgments at law. Bill dismissed. PPEAL from the Circuit Court of the Dis trict of Columbia. This cause was argued by Jones for the appellants and complainants, and Harper for the respondents and defendants. Johnson, J., delivered the opinion of the court: The object of this bill is to obtain a specific performance of an alleged agreement to receive · a quantity of cotton bagging, at a [*152 The lick being found, there is no difficulty specified price, in satisfaction of certain judgin ascertaining its identity. The witnesses cer-ments at law. The defendants deny that the tainly say that there are many other licks on circumstances proved ever rendered the agreethe same creek, and the surveyor has laid down ment final and obligatory upon them; and this two others; but they also say that no other is the principal, perhaps the only, question the case presents. lick was a buffalo lick. It has been stated and argued at the bar that, although licks are of It appears that the complainants were invery different dimensions, and the difference is debted to one West, who assigned this debt immense between the extremes, yet the grada- his estate, to Lapsley et al.; that Lapsley liqui(then unliquidated), together with the residue of tions approach each other so nearly that the dated the debt with the Barrs, and took their exact line between them can scarcely be drawn. notes payable at different periods, making up, toAdmitting this to be true, yet there are licks gether, the amount due. These notes having which are indubitably buffalo licks, there are become due, and judgment being recovered on others which are indubitably deer licks. some of them; in October, 1811, the Barrs adNow, the witnesses pronounce, positively, that dressed a letter to Lapsley, in which they offer this is a buffalo lick, and that the others are to pay him in cotton bagging, at thirty-three deer licks. In addition to this, it is nearest to cents per yard, by instalments, at certain pethe mouth of the creek, and farthest from Har-riods. On the 17th of December, in the same rodsburgh; consequently, it is nearer the dis- year, Lapsley answered their communication, and the following words, contained in that let. ter, are all that the court deem material to the point on which they propose to found their decision: "We are willing to take cotton bagging in liquidation of the three last notes, delivered at the period you propose, but not at the price you offer it." "We expect that you give us satisfactory accounts for the punctual performance of your engagements, and to this effect we shall direct Mr. M'Coun, to whom we propose to write by the next mail." On another passage of this letter, and a letter written by West, on the 18th of December, it has been contended that certain conditions were imposed 153*] upon the Barrs, which it was incum bent upon them to comply with before they could claim the benefit of the offer contained in Lapsley's letter. But, as the opinion of this court is made up on a ground wholly unaffect ed by this question, we deem it unnecessary to notice this point. It appears that Lapsley never, in fact, instructed M'Coun on the sub ject of this letter of the 17th of December. But Warfield, the agent of the Barrs (who were absent from home on the receipt of that letter), supposing his principals to be referred to M'Coun as the authorized agent of Lapsley, notified to him the acceptance of Lapsley's offer, and remained under the impression that the agreement had become final, notwithstanding M'Coun's declining, altogether, to act, for want of instructions. Lapsley, on the other hand, alleges that the notification of acceptance ought to have been made to himself, and assigns the want of an answer from the Barrs as his reason for never having given instruc tions to M'Coun. ERROR to the Circuit Court for the District of East Tennessee. This cause, depending mainly on the same principles with the preceding case of Preston v. Browder, was argued by Key for the plaintiff, and by Jones for the defendant in error. The facts are fully stated in the opinion of the court. *Todd, J., delivered the opinion of the [*156 court as follows: This was an action of ejectment brought by the plaintiff in error against the defendant in error. On the trial of the cause in the Circuit Court, it appeared from evidence that the land in controversy was situate in the tract of country lying south of Holston and French broad The river, and between the rivers Tennessee and This state of facts presents an alternative of Big Pigeon, the Indian title to which was exextreme difficulty. On the one hand, Lapsley, tinguished by the treaty of Holston. by writing that he shall direct M'Coun by the plaintiff claimed by virtue of a grant, issued next mail, plainly pointed to a mode of ex-by the state of North Carolina, bearing date pediting the conclusion of the agreement, through the agency of a representative on the spot, and when he intimated his intention to write by the next mail, showed that it was not his intention to await Barr's answer. This the 26th of December, 1791. The defendant claimed under a grant from the state of Tennessee, bearing date the 2d of January, 1809. The defendant, by his counsel, objected to the grant under which the plaintiff claimed title was well calculated to delude Barr into the idea being admitted in evidence, on the ground that that Lapsley would recognize no notification it was for land which the laws of North Carobut that which should be made to M'Coun. lina had prohibited from being entered, surOn the other hand, how far could M'Coun, veyed, or granted. The court sustained the ob154] unempowered, uninstructed as he was,jection, and prohibited the grant from going in legally act, to bind Lapsley by his acceptance of the notification? Or, if he had received instructions from Lapsley what obligation was he under to have undertaken the agency? Under the pressure of this dilemma, there is but one principle to which the court can resort for a satisfactory decision. Something remained for Barr to do. The notification of his acceptance was necessary to fasten the agreement upon Lapsley. For this purpose, he very rationally addressed himself, in the first place, to M'Coun; and the reference to Lapsley's letter would have been a sufficient excuse for not eturning an answer until a reasonable time had elapsed for M'Coun to receive the expected communication from Lapsley. But when he found M'Coun uninstructed, and unwilling to act under the letter addressed to Barr, his Course was plain and unequivocal. A letter to Lapsley, transmitted by the mail, would have put an end to all doubt and difficulty. 1.-In England the Court of Chancery will not, in general, entertain a bill for a specific performance of contracts for the sale of chattels, or which relate to merchandise, but leaves the parties to their remedy at law, where it is much more expewhere the agreement is not final, but is to be ditious. One exception to this general rule is made complete by subsequent acts, without which it would be deemed imperfect at law. 3 Atk. 383, Buxton v. Lister et al.; 1 Pere. Will. 570; Bunb. 135; 10 Ves. Jun. 161. The ground upon which a specific performance is refused, in these cases, is, that an adequate remedy exists at law, where damages may be recovered, and that the value of merchandise varies so much at different times, and under different circumstances, as to render it frequently unjust to compel a specific performance. party should be relieved against the penalty of a But where the question was, upon what terms a bond which had been forfeited, for not transferring stock at a given day, according to his agreement, transfer the stock in specie, and to account for all the English Court of Chancery decreed him to dividends accrued since he ought to have transferred it. 2 Vern. 394; 1 Bro. Parl. Cas. 193. 2.-Ante, p. 115. evidence to the jury; whereupon a verdict and judgment was rendered in favor of the defend ant. A bill of exceptions was taken to the opinion of the court, and the cause was brought up to this court by writ of error. The correctness of the opinion of the Circuit Court depends on the sound construction of the act of the general assembly of the state of North Carolina, passed in 1783, c. 2, s. 5 and 6, whereby the lands, within certain limits therein designated (including the lands in controversy), are reserved for the Cherokee Indians, 157*] *and the citizens prohibited from entering and surveying lands within those limits. It is contended, on the part of the plaintiff, that this act cannot be construed, nor did the legislature mean to give the Indians a right of property in the soil, but merely the use and enjoyment of it. That the succeeding legislatures, by the acts of 1784, 1786, and 1789, have changed this reservation for the use of the Indians, and given unlimited access, for the purposes of making entries and surveys "to all lands not before specially located," and to "all vacant lands" within the limits of the state. Consequently, locations could be made, and grants issued to perfect titles of lands lying within the limits of the Indian reservation. Quære, Whether more than a pro rata freight was due to the master. It seems that the property fiscable as prize of war, notwithstanding the neuof a house of trade in the enemy's country is con tral domicile of one or more of its partners. Atrict of North Carolina. This was the case of a Russian ship, captured on the 2d of June, 1814, by the privateer Herald, on a voyage from London to St. Michaels, and brought into the port of Wilmington, N. C., for adjudication. The ship was chartered by Messrs. Burnett & Co., a mercantile firm at London, for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any port in the Baltic, and thence to return to London, at the stipulated freight of one thousand guineas. The ship and cargo were libeled as prize of war, and, upon the hearing in the District Court, that part of the cargo which was not claimed was condemned. The residue of PPEAL from the Circuit Court for the Dis Whether the legislature had the power, or intended to give the Indians a right of property in the soil, or merely the use and enjoyment of it, need not be inquired into, nor decided, by this court; for it is perfectly clear that the 5th section of the act of 1783, c. 2, prohibits all persons from making entries or surveys for any lands within the bounds set apart for the Cherokee Indians, and declares all such entries and grants thereupon, if any should be made, utterly void. They had the power, and have declared, unequivocally, an intention to prohibit entries from being made within those reservations. The several acts of 1784, 1786, and 1789, although they contain general expressions, which, if taken singly, might seem to sanction entries and surveys for "all lands not before specially located," or to "all vacant the cargo, excepting one moiety of certain lands;" yet, when taken together, these general | *packages, claimed on behalf of Messrs. [*160 158*] expressions must be controlled by the Ivens & Burnett, a mercantile firm at St. restrictions and prohibitions as to the reserva- Michaels, was restored. The whole freight was tions for the Indian tribes. The reasoning used decreed to be paid to the master, and charged in the case of Preston v. Browder,' applies with exclusively upon the proceeds of the property equal, if not greater, propriety, to this case. condemned, and the moiety of the property And, although at different periods different restored to Messrs. Ivens & Burnett. From so sections of these reservations have been sub-much of this decree as respected the controjected to appropriation by entries and surveys, versy between the captors and the claimants of it has been in consequence of the several trea- the cargo, an appeal was interposed to the Cirties with the Indians, by which the boundaries cuit Court, where the decree was affirmed, and of the reservations have been altered, and the the cause was brought, by appeal from the latIndian claim extinguished; but it is believed ter decree, to this court. that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the legislature authorized or permitted it. Whatever doubts this court might entertain on this subject, were they now construing these laws upon the first impression, that doubt would be removed on a view of the case of Avery v. Strother, in the Reports in Conference, p. 431, decided by the judges of the Supreme Court of North Carolina. This is a decision directly in point, made by the Supreme Court of the State, construing the laws brought 1.-Ante, 115. Wheaton, for the appellants and captors. The cause may be divided into three branches: 1st. As to the claim for the three invoices of goods shipped by Messrs. Burnett & Co., of London, to Messrs. Ivens & Burnett, of St. Michaels. 2d. As to the remainder of the cargo. 3d. As to the order respecting the freight. 1. There is a hostile trade which will affect the property engaged in it with confiscation, as completely and effectually as a hostile domicile, NOTE.-Damages in cases of capture, on restitution, see note to 27 L. ed. U. S. 662. which was to be delivered at St. Michaels. The master was not bound to wait longer than the first adjudication; indeed, the undelivery completely dissolved the contract between him and the owners of the goods, and entitled the master to whatever freight he might have earned in their service. and that without regard to the national charac-was to be performed in the service of this cargo, ter of the individual. Thus, the produce of an estate in the enemy's country, belonging to a person domiciled in a neutral country, is liable to capture and condemnation.' This principle was adopted and confirmed by this court in the case of Mr. Bentzen, a Danish subject, resident in Denmark, whose claim to 30 hogs161] heads of sugar, the produce of an es- *Gaston, contra. 1. The captors can- [*163 tate belonging to him, in a West India Island not now object that the freight, decreed in the possessed by the enemy, was rejected, and the court below to be paid to the master, was unproperty condemned." So a vessel purchased reasonable in itself, or not chargeable to them. bona fide in the enemy's country, by a neutral, They have acquiesced in this part of the decree, continuing in her former trade, is good prize. and it has been definitively carried into execuAnd the property of a house of trade estab- tion. 2. The goods shipped to Messrs. Ivens lished in the enemy's country, though some of & Burnett, of St. Michaels, were shipped by the parties may be domiciled in a neutral coun- order, and on account and risk of that house of try, is prize of war. Apply these authorities trade. The claim, the documentary proof, and to the present case: the share of Mr. Ivens can- the preparatory examinations, are perfectly connot escape the same fate with that of his part-sistent, and establish that a moiety of this shipner domiciled in London; the partnership is ment is the property of that house, the partners domiciled there, and his interest is so mixed up of which are domiciled in a neutral country; with hostile interests that it cannot be sepa- they must, therefore, be regarded as neutral rated. These principles were recognized by a by both belligerents, with reference to the trade learned judge of this court, in the first circuit, which they carry on with the adverse belligerin the case of St. Jose Indiano, the decree ent, and with all the world. In the case of The in which was acquiesced in by the counsel. St. Indiano it was insisted that the principle Their general spirit was adopted by that vener- of condemnation applied in cases where a partable tribunal, the Continental Court of Appeals ner of a neutral house is domiciled in the enein prize causes, and applied even to a treaty my's country, and ships to such house, goods, stipulation, that free ships should make free the manufacture of that country; but the goods, which was held not to extend to a trade position was expressly overruled. Even if the carried on by a neutral, but hostile in its na-hostile and the neutral house here consisted ture. 2. As to the other portions of the cargo, of the same partners, and the shipment was the evidence to restore or condemn must come, made from the hostile to the neutral partner, in the first instance, from the documentary for their joint concern, it would, nevertheless, 162*] evidence and *the examinations in pre- be contended that the share of the hostile partparatorio. In this case, that is neither sufficient ner was alone subject to condemnation. Howfor condemnation, nor does it afford satisfac-ever sincere and profound a respect is felt for tory grounds for immediate restitution; further the learned judges, who are said to have deproof ought, therefore, to be ordered. 3. The cided that the belligerent character of one partneutral master is undoubtedly entitled to his ner shall avail to condemn, and the neutral freight; but this is not to be charged, exclu- character of the other shall not avail to save, sively, upon the property condemned and or- where the house has a *domicile both in [*16 4 dered to be sold, whilst the property specifically the neutral and belligerent country; these suprestored escapes the burden which is imposed, posed decisions cannot be reconciled with the solely upon the ground of an implied perform- dictates of justice, or the principles of reason, ance of the contract on the part of the master. and it is, therefore, believed that they will not The law says that capture is equivalent to de-receive the sanction of the highest judicial livery; it does not say that condemnation only tribunal of this country. 3. No specific ground is equivalent to delivery, and that, therefore, has been taken by the captor's counsel to supthe portion of the cargo restored shall be port the appeal as to the remaining portions of charged with no part of the freight. On the the cargo. contrary, in a case where the cargo had been undelivered, and the whole was restored upon the original evidence, the freight was held to be a charge upon the cargo, though it was not carried to the port of destination. But, here, a pro rata freight only ought to be allowed; but a small part of the whole voyage, for which the 1.000 guineas was stipulated to be paid, 1.5 Rob. 20, The Phoenix. 2.-Feb. T. 1815. 3.-1 Rob. 1, The Vigilantia; 4 Rob. 31. The Jemmy: 3 Rob. 41, The Jonge Amelia, cited in the case of The Portland. 4.-1 Rob. 1, the case of Mr. Coopman, cited in The claims are verified by the documentary evidence showing the goods to have been shipped by order, and for the account and risk of persons, subjects of, or domiciled in, a neutral country. Wheaton, in reply. 1. If the captors have improvidently closed the door, in the court below, upon the question as to what amount of freight shall be paid to the master, it is still open as to whether any portion of the cargo is to be exempt from contributing to the payment of freight. That is, emphatically, a controversy between the captors and claimants; the master has nothing to do with it; he has been The bring The Vigilantia; 2 Rob. 251, The Susa; 3' Rob. 41, paid his freight, and gone away. The Portland; 5 Rob. 302, The Jonge Klassina. - case. ing in the vessel and cargo for adjudication, was not a wrong done by the captors to the 8.-6 Rob. 231. The Hoffnung; 1 Edwards, 246, The Friends; 1 Rob. 289, The Copenhagen; 4 Rob. 77, The Isabella Jacobina. |