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1. A conveyance by the plaintiff's lessor, during
the pendency of an action of ejectment, can only
operate upon his reversionary interest, and cannot
extinguish the prior lease. The existence of such a
lease is a fiction; but it is upheld for the purposes
of justice. If it expire during the pendency of a
suit, the plaintiff cannot recover his term at law,
without procuring it to be enlarged by the court,
and can proceed only for antecedent damages.
Robinson v. Campbell,
(224) 376
2. Effect of an outstanding superior title, in
ejectment.
Note 1,
(223) 376
3. Although the grantees in a deed executed
after, but recorded before, another conveyance of
the same land, being bona fide purchasers without
notice, are, by law, deemed to possess the better
title; yet, while L. conveyed to C. the land in con-
troversy specifically, describing himself as devisee
of A. S., by whom the land was owned in his life-
time, and by a subsequent deed (which was first
recorded), L. conveyed to B. "all the right, title,
and claim, which he the said A. S. had, and all
the right, title, and interest, which the said L.
holds as legatee and representative to the said A.
S. deceased, of all land lying and being within the
state of Kentucky, which cannot, at this time, be
particularly described. whether by deed, patent,
mortgage, survey, location, contract, or otherwise,'
with a covenant of warranty against all persons
claiming under L., his heirs and assigns; it was
held, that the latter conveyance operated only
upon lands, the right, title, and interest of which
was then in L. and which he derived from A. S.;
and, consequently, could not defeat the operation
of the first deed, upon the land specifically con-
veyed.
Brown v. Jackson,
(449) 432
1. A patent issued on the 18th November, 1784,
for 1,000 acres of land in Kentucky, to J. C., who
had previously, in July, 1784, covenanted to convey
the same to M. G., the ancestor of the lessor of
the plaintiff, and on the 23d of June, 1786, M. G.
made an agreement with R. B., the defendant in
ejectment, to convey to him 750 acres, part of the
tract of 1,000 acres, under which agreement R. B.
entered into possession of the whole tract; and on
the 11th April, 1787, J. C., by direction of M. G..
conveyed to R. B., the 750 acres in fulfillment of
said agreement, which were severed by metes and
bounds from the tract of 1,000 acres. J. C. and
his wife, on the 26th April, 1791, made a convey-
ance in trust of all his property, real and personal,
to R. J., and E. C. On the 12th February, 1813,
R. J., as surviving trustee, conveyed to the heirs
of M. G., under a decree in equity, that part of
the 1,000 acres not previously conveyed to R. B..
and in the part so conveyed under the decree was
included the land claimed in ejectment. R. B..
the defendant, claimed the land in controversy un-
der a patent for 400 acres issued on the 15th Sep-
tember, 1795, founded on a survey made for B. N..
May 12th 1782 and under a deed of the 13th of
December, 1796, from one Coburn, who had, in the
winter and spring of 1791, entered into and fenced
a field within the bounds of the original patent for
1,000 acres to J. C., claiming to hold the same
under B. N.'s survey of 400 acres. Held, that upon
the issuing of the patent to J. C. in November,
1784, the possession then being vacant, he became
by operation of law vested with a constructive ac-
tual seizin of the whole tract included in his pat-
ent; that his whole title passed by his prior con-
veyance to M. G. (the ancestor of the plaintiff's
lessor); and that when it became complete at law
by the issuing of the patent, the actual construc
tive seizin of J. C. passed to M. G., by virtue of
that conveyance. Also, held, that when subse-
quently, in virtue of the agreement made in June,
1786, between M. G. and R. B. (the defendant),
the latter entered into possession of the whole
tract under this equitable title, his possession being
consistent with the title of M. G., and in common
with him, was the possession of M. G. himself, and
enured to the benefit of both according to the
nature of their respective titles. And, that when
subsequently in April, 1787, by the direction of M.
G., J. C. conveyed to the defendant 750 acres in ful-
fillment of the agreement between M. G. and the
defendant, and the same were severed by metes
and bounds in the deed from the tract of 1,000
acres, the defendant became sole seized in his own
right of the 750 acres so conveyed. But as he
still remained in the actual possession of the rest
due of the tract, within the bounds of the patent,
which possession was originally acquired under M.
G., the character of his tenure was not changed
by his own act, and therefore he was quasi tenant
to M. G., and, as such, continued the actual seizin
of the latter, over his residue at least, up to the
deed from Coburn to the defendant in 1798. Also,
held, that if Coburn, in 1791, when he entered and
fenced a field, etc., had been the owner of B. N.'s
survey, his actual occupation of a part would not
have given him a constructive actual seizin of the
residue of the tract included in' that survey, that
residue being at the time of his entry and occu-
pation in the adverse seizin of another person, (M.
G.) having an older and better title. But there
being no evidence that Coburn was the legal owner
of B. N.'s survey, his entry must be considered as
an entry without title, and consequently his dis-
seizin was limited to the bounds of his actual oc-
cupancy.
2. The deed from J. C. and wife, to D. J. and E.
C., in 1791, was not within the statute of cham-
perty and maintenance of Kentucky; for as to all
the land not in the actual occupancy of Coburn,
the deed was operative, the grantors and those
holding under them having at all times had the
legal seizin.
4. Where the defendant in ejectment, for lands
in North Carolina, has been in possession under
title in himself, and those under whom he claims.
for a period of seven years, or upwards such
possession is, by the statute of limitations of North
Carolina, a conclusive legal bar against the ac-
tion by an adverse claimant, unless such claimant
brings himself by positive proof within some of
the disabilities provided for by that statute.
558
Somerville v. Hamilton, (230, 233)
5. An agreement, by parol, between two proprie-
tors of adjoining lands, to employ a surveyor to
run the divided line between them, and that it
should be thus ascertained and settled, which was
executed, and the line accordingly run and marked
on a plat by the surveyor in their presence, as the
boundary, held to be conclusive in an action of
ejectment after a corresponding possession of 20
years by the parties, and those claiming under
them respectively.
Boyd v. Graves,
See Evidence, 1, 2, 3, 4.
ELECTION AND SATISFACTION-2.
See Chancery, 1, 2, 3.
1. Where a seizure was made under the 11th sec-
tion of the embargo act of April, 1808, it was de-
termined, 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 action of replevin therefor in the state
(1, 10) 169, 171
2. In seizures under the embargo laws, the law
itself is a sufficient justification to the officer where
the discharge of duty is the real motive, and not
the pretext for detention; and it is not necessary
to show probable cause.
(18, 21) 174, 175
3. 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 detention of the cargo is lawful, than
what is necessarily dependent on the detention of
the vessel.
175
4. It is not indispensable to the termination 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
inducing her to enter another port with a view to
terminate her voyage bona fide.
175
5. But if a vessel, not actually arriving at ner
port of original destination, excites an honest sus-
picion in the mind of the collector that her demand
of a permit to land the cargo was merely colorable,
this is not a termination of the voyage so as to
preclude the right of detention.
175
(Ib.)
6. Under the embargo act of the 22d December,
1807, the words "an embargo shall be laid," not
only imposed upon the public officers the duty of
preventing the departure of registered or sea-letter
vessels on a foreign voyage, but, consequently, ren-
dered them liable to forfeiture under the supple-
mentary act of the 9th January, 1808.
(148, 153)
206, 207
7. In such case, if the vessel be actually and
bona fide carried by force to a foreign port, she is
(153) 207
not liable to forfeiture.
8. But if the capture, under which it is alleged
the vessel is compelled to go to a foreign port, be
206
fictitious and collusive, condemnation will ensue.
(148)
Id.
1. Where the final judgment or decree, in the
highest court of law, or equity, of a state, is re-ex-
aminable in the Supreme Court of the United
States, the return of a copy of the record, under
the seal of the court, certified by the clerk, is a
sufficient return to the writ of error.
Martin v. Hunter's lessee,
111
2. It need not appear that the judge, who grant-
ed the writ of error, did, upon issuing the citation,
take a bond, as required by the 22d section of the
judiciary act, that provision being merely direct-
ory to the judge.
3. See Constitutional Law, 1, 2.
1. Evidence, by hearsay and general reputation,
is admissable only as to pedigree.
Davis v. Wood,
22
(6)
2. Verdicts are evidence between parties and
privies only.
(8) 23
3. Where the evidence is so contradictory and
ambiguous as to render a decision difficult, farther
or instance
proof will be ordered in
causes.
(18, 19)
4. Rules of evidence, adopted by the court in
1st. Where the claimants assume the
such causes.
2d.
onus probandi, not to restore, unless the defense
If the
be proved beyond a reasonable doubt.
evidence of the claimants be clear and precisely in
point, to pronounce restitution, unless that evi-
dence be clouded with incredibility, or
1. Where a witness, a clerk to the plaintiff,
swore that the several articles of merchandise,
contained in the account annexed to his deposition,
were sold to the defendant by the plaintiff, and
were charged in the plaintiff's day-book by the de-
ponent and another person (since dead), and that
the deponent delivered the goods, and farther
that is had referred to the original entries
was sufficient
in the day-book; held, that this
swore,
evidence to prove the sale and delivery of the
goods.
M'Coul v. Lekamp's Adm.
(111, 116) 197, 198
2. Law of France, as to evidence of tradesmen's
books.
(117) 199
(118)
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4.
(Ib.)
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 2, (192) 217
6. The answer of one defendant to a bill in
defendant; and the answer of an agent is not evi-
chancery cannot be used as evidence against his co-
dence against his principal, nor are his admissions
in pais, unless they are a part of the res gestæ.
Leeds v. The Marine Ins. Co.
266, 267
(380, 383)
If the va-
1. The party who sets up a title must furnish
the evidence necessary to support it.
lidity of a deed depends on an act in pais, the
party claiming under it is as much bound to prove
the performance of the act as he would be bound
to prove any matter of record on which the va-
(77, 79) 518, 519
Williams v. Peyton,
lidity of the deed might depend.
2. In the case of lands sold for the non-payment
of taxes, the Marshal's deed is not even prima facie
(79)
evidence that the pre-requisites required by law
have been complied with.
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4. In general, judgments and decrees are evidence
only in suits between parties and privies; but the
doctrine is wholly inapplicable to a case where a
decree in equity was introduced on the trial of an
of the other party, but as an introductory fact to a
ejectment, not as per se binding upon any rights
link in the chain of the plaintiff's title, and consti-
555
(220)
tuting a part of the muniments of his estate.
Id.
5. The seal to the commission of a new govern-
ment, not acknowledged by the government of the
United States, cannot be permitted to prove itself;
but the fact, that the vessel cruising under such
commission is employed by such new government,
may be established by other evidence without
proving the seal.
FINES, FORFEITURES, AND PENALTIES-1.
1. The personal representatives of a deceased col-
lector and surveyor, who was such at the time of
the seizure being made, or prosecution. or suit
commenced, and not their successors in office, are
entitled to that portion of fines, forfeitures and
penalties, which is, by law, to be distributed among
the revenue officers of the district where they
were incurred.
Jones et al. v. Shore's Executor. (462) 136
2. In such case, there being no naval officer in
the district, the division adjudged to be made, in
equal proportions, between the collector and sur-
veyor.
1. The commencement of another suit, for the
same cause of action, in the court of another state,
since the last continuance, cannot be pleaded in
abatement of the original suit.
Renner & Bussard v. Marshall, (215)
2. The exceptio rei judicatæ applies only to final,
or definitive, sentences in another state, or in a
74
foreign court, upon the merits of the case.
Id. note 1,
See Hypothecation, 1.
See Prize.
1. E. B. C., having an interest in a cargo at
sea, agreed with J. W. for the sale of it, and J. W.
signed the following agreement in writing: "J.
W. agrees to purchase the share of E. B. C. in
the cargo of the ship Aristides, W. P. Z., super-
cargo, say at $2,522.83, at fifteen per cent., ad-
vance on said amount, payable at five months from
this date, and to give a note or notes for the same,
with an approved indorser."
this agreement, J. W. gave his notes for the sum
In compliance with
mentioned, and in an action upon the notes, the
want of a legal consideration under the statute of
frauds being set up as a defense, on the ground of
the defect of mutuality in the written contract;
the court below left it to the jury to infer from the
evidence an actual performance of the agreement;
the jury found a verdict for the plaintiff, and the
court below rendered judgment thereon. The judg-
ment affirmed by this court.
(85) 520
2. Note on the 17th sec. of the statute of frauds,
as to the sale of goods.
3. A deed made upon a valuable and adequate
(89) 521
consideration, which is actually made, and the
change of property bona fide, or such as is purport-
ed to be, cannot be considered as a conveyance to
defraud creditors.
Wheaton v. Sexton, (503, 507)
4. An agreement by parol, between two proprie-
626, 627
tors of adjoining lands, to employ a surveyor to
run the dividing line between them, and that it
should be thus ascertained and settled, which was
executed, and the line accordingly run and marked
on a plat by the surveyor in their presence, as the
boundary, is conclusive in an action of ejectment,
after a corresponding possession of 20 years by the
parties and those claiming under them.
agreement is not within the statute of frauds, as
Such an
being a contract for the sale of lands, or any in-
terest in or concerning them.
(513) 628
Boyd v. Graves,
See Chancery, 26, 27, 28.
1. B., a merchant in New York, wrote to L., a
merchant in New Orleans, on
1806, mentioning that a ship, belonging to T. &
the 9th January,
Son, of Portland, was ordered to New Orleans for
freight, and requesting L. to procure a freight for
her, and purchase and put on board of her 500.
bales of cotton on the owners' account, "for the
payment of all shipments on the owners account,
thy bills on T. & Son, of Portland, or me, sixty
days sight, shall meet due honor."
February, B. again wrote to L., reiterating the
On the 13th
710
whom they afterwards continued to correspond,
former request, and inclosing a letter from T. &
adding, "thy bills on me for their account, for cot-
Son to L., containing their instructions to L., with
ton they ordered shipped by the Mac, shall meet
with due honor."
the payment of which thy bill on me shall meet
again wrote L. on the same subject, saying, "the
On the 24th July, 1806, B.
owners wish her loaded on their own account, for
bills on B., which were paid.
with due honor at sixty days sight." L. proceeded
to purchase and ship the cotton, and drew several
two bills on T. & Son, payable in New York, which
He afterwards drew
were protested for non-payment, they having, in
the meantime, failed; and about two years after-
wards, drew bills on B. for the balance due, in-
cluding the two protested bills, damages and in-
the undertaking in the letter of the 9th January:
terest. Held, that the letters of the 13th Febru-
ary, and 24th July, contained no revocation of
according to B's assumption, this could only af-
that although the bills on T. & Son were not drawn
fect the right of L. to recover the damages paid
by him on the return of the bills, but that L. had
still a right to recover on the original guaranty of
the debt. It was also held that L., by making his
election to draw upon T. & Son, in the first in-
stance, did not, thereby, preclude himself from
resorting to B., whose undertaking was, in effect.
a promise to furnish the funds necessary to carry
into execution the adventure.
had a right to recover from B. the commissions.
Also, held that L.
disbursements, and other charges of the transac-
2. The cases on the subject of guaranty collected,
Note 1,
(148) 356
See Bills of Exchange, etc., 5, 6.
INDICTMENT-1.
See Constitutional Law, 6.
INDICTMENT-2.
trading with the enemies of the United States.
1. Under the act of the 6th July, 1812, "to
prohibit American vessels from proceeding to or
articles of provision and munitions of war, with-
and for other purposes," living fat oxen, etc., are
in the true intent and meaning of the act.
transportation thereof within the true intent and
The United States v. Sheldon,
2. Driving living fat oxen, &c., on foot is not a
(119) 199
meaning of the same act.
(Ib.) 199
ployed persons to unlade as much of the cargo (of
corn) as could be saved, and nearly one-half was
landed, dried, and sent on to the port of destina-
tion, and sold by the consignees, at about one-
quarter the price of sound corn, this was held not
(Ib.) 75
to be a total loss, and the insurer not to be liable.
Id.
3. With respect to such articles, the underwrit-
ers are free from all partial losses of every kind,
which do not arise from a contribution towards a
general average.
Id. note 2, (Biays v. The Chesapeake Ins.
(227) 78
Co.)
4. It is now the established rule, that a damage
exceeding the moiety of the value of the thing in-
sured, is sufficient to authorize an abandonment,
but this rule has been deemed not to extend to a
cargo consisting wholly of memorandum articles.
78
(228)
Ib. note 3, (Marcardier v. The Chesapeake
Ins. Co.)
So, also, in the cargo of a mixed character. con-
gisting of articles, some within, and some without,
the purview of the memorandum, no abandonment,
for mere deterioration in value, during the voyage,
is valid, unless the damage on the non-memoran-
dum articles exceeds a moiety of the whole cargo,
(Ib.) 78
including the memorandum articles.
Id.
5. Law of Italy and France as to memorandum
articles.
Id. note 1.
1. Insurance on a vessel and freight "at and
from Teneriffe to the Havanna, and at and from
thence to New York, with liberty to stop at Matan-
zas," with a representation that the vessel was to
stop at Matanzas to know if there were any men-
The vessel sailed on the
of-war off the Havanna.
voyage insured, and put into Matanzas to avoid
British cruisers, who were then off the Havanna,
and were in the practice of capturing neutral ves-
sels trading from one Spanish port to another.
While at Mantanzas, she unloaded her cargo, under
an order from the Spanish authorities; and after-
wards proceeded to the Havanna, whence she sailed
on her voyage for New York, and was afterwards
It was proved that
lost by the perils of the seas.
the stopping and delay at the Havanna was neces-
sary to avoid capture that no delay was occa-
sioned by discharging the cargo, and that the risk
Held, that the
was not increased, but diminished.
order of the Spanish government was obtained un-
der such circumstances as took from it the char-
acter of a vis major imposed upon the master, and
was therefore no excuse for discharging the cargo;
but that the stopping and delay at Matanzas were
permitted by the policy, and that the unloading the
cargo was not a deviation. This case distinguished
from that of the Maryland Ins. Co. v. LeRoy, 7
Cranch, 26.
Hughes v. The Union Ins. Co. (159)
2. To entitle the plaintiff to recover in an action
The
on a policy of insurance, the loss must be occa-
sioned by one of the perils insured against.
insured cannot recover for a loss by barratry, un-
less the barratry produced the loss; but it is
immaterial whether the loss so produced occurred
during the continuance of the barratry or after-
wards.
Swann v. The Union Insurance Company,
(168) 361
(171) 362
3. Cases on the subject of barratry.
Note 1,
4. A vessel within a port, blockaded after the
commencement of her voyage, and prevented from
proceeding on it sustains a loss by a peril within
that clause of the policy insuring against the "ar-
rests, restraints, and detainments of kings," etc.,
board a
for which the insurers are liable; and if the vessel
so prevented be a neutral, having on
neutral cargo, laden before the institution of the
blockade. the restraint is unlawful.
(183) 365
Olivera v. The Union Insurance Company,
5. A blockade does not, according to modern us-
age, extend to a neutral vessel found in port, nor
prevent her coming out with the cargo which was
(Ib.) 365
on board when the blockade was instituted.
Id.
6. A technical total loss must continue to the
time of abandonment. Quære, as to the application
of this principle to a case where the loss was by a
restraint on the blockade, and proof made of the
commencement of the blockade, but no proof that
(Ib.)
it continued to the time of abandonment.
Id.
See Constitutional Law, 1, 2, 5.
1. The courts of this country have no jurisdic-
tion to redress any supposed wrongs committed on
the high seas, upon the property of its citizens,
by a cruiser regularly commissioned by a foreign
and friendly power, except when such cruiser has
been fitted out in violation of our neutrality.
(238) 80
2. Law of France and Spain, and practice of the
Italian states, as to the restitution of the property
of their subjects, captured by foreign cruisers, and
brought into their ports.
3. A public vessel of war, belonging to the Em-
peror Napoleon, which was before the property of
a citizen of the United States, and, as alleged,
ports, and demeaning herself in a friendly manner,
wrongfully seized by the French, coming into our
held to be exempt from the jurisdiction of this
country, and could not be reclaimed by the former
owner in its tribunals.
(252) 84
Id. note 1, (The Exchange)
4. The exclusive cognizance of questions of prize
belongs to the courts of the capturing power; but
the admiralty courts of a neutral may take juris-
diction so far as to ascertain whether the capture
(258) 86
be piratical, or made in violation of its neutrality.
5. A citizen of a territory cannot sue a citizen of
a state, in the court of the United States; nor can
those courts take jurisdiction by other parties
being joined, who are capable of suing; all the
parties, on each side, must be subject to the ju-
risdiction, or the suit will be dismissed.
The Corporation of New Orleans v. Winter
(91) 44
et al.
6. In this respect, there is no distinction be-
tween a territory and the District of Columbia;
the citizens of neither can sue a citizen of a state,
in the courts of the United States.
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 dam
ages for the illegal act. But the common law rem-
edy in such case must be sought for in the state
courts; the courts of the United States having no
jurisdiction to decide on the conduct of their offi-
cers, 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.
2. The jurisdiction of the Circuit Court having
once vested between citizens of different states,
cannot be devested by a change of domicile of one
of the parties, and his removal into the same state
with the adverse party, pendente lite.
Morgan's heirs v. Morgan et al.
(290, 297) 242, 244
3. This court has not jurisdiction to issue a writ
of mandamus to the register of a land-office of the
United States, commanding him to enter the appli-
cation of a party for certain tracts of land, accord-
ing to the 7th section of the act of the 10th of
May, 1800, "providing for the sale of the lands of
the United States north-west of the Ohio, and
above the mouth of Kentucky River," which man-
damus had been refused by the Supreme Court of
the state of Ohio. upon a submission by the regis-
ter to the jurisdiction of that court, being the
highest court of law or equity in that state.
(369) 263
M'Cluny v. Silliman,
4. Cases where the courts of the United States
have, or have not, the authority to issue writs of
mandamus.
Id. note 2,
See constitutional law.
1. M'R., a citizen of Kentucky, brought a suit
against C. C., stated to be a citizen of Virgina,
in equity, in the Circuit Court of Kentucky,
711
and E. J. and S. E. without any designation of
Id.
3. In ascertaining a place to be found by its dis-
tance from another, the vague words "about" or
"nearly," and the like. are to rejected, if there
are no other words rendering it necessary to retain
them; and the distance is to be taken positively.
Id.
4. Reasonable certainty is required, both in the
descriptive call and the locative call of an entry: if
the descriptive call will not inform a subsequent
locator in what neighborhood he is to search for
the land, the entry is defective, unless the particu-
lar object is one of sufficient notoriety. If, after
having reached the neighborhood, the locative ob-
ject cannot be found within the limits of the de-
scriptive calls, the entry 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 accompanied with an-
other, such as a marked tree at the spring, it seems
to be required that both should be satisfied.
Id.
(Ib.) 222
4. The sailing under the enemy's license con-
stitutes of itself, an act of illegality, which sub-
5. The call for an unmarked tree of a kind
jects the property to confiscation, without regard
to the object of the voyage, or the port of destina-sufficiently described by the other parts of the en-
which is common in the neighborhood of a place
try to be fixed with certainty may be considered as
an immaterial call.
1. A vessel and cargo, which is liable to seizure
as enemy's property, or for sailing under the pass
or license of the enemy, may be seized after her
arrival in a port of the United States, and con-
demned as prize of war. The delictum is not
purged by the termination of the voyage.
(100) 523
2. The circumstance of a vessel having been sent
into an enemy's port for adjudication, and after-
7. The entry in this case was decreed to be sur-
veyed, beginning 12 miles below the mouth of Lick-
ing on the bank of the Ohio, and running up that
river 1,060 poles; which line was to form the base
of a rectangular parallelogram, to include 2,000
acres of land.
(Ib.) 224
8. An error in description is not fatal in an
entry if it does not mislead a subsequent locator.
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