Volume 38 — United States Reports

Held: and still holds, possession of the said premises, under the said agreement last named, and that the said Bank of the United States then had, and now has, a good and lawful legal title to the said premises: to the admission .of the said testimony, so offered to be given as aforesaid, the plaintiff, by his counsel, objected, and the Court, sustained the objection, and refused to permit such, testimony to be given. '…

The case as stated in the opinion of the Court, was as follows:— “ This is the Case of a bill, purporting to be. a Ml of review.

Held: that if this objection had been made in the Circuit Court on a motion ie-yrrest- of judgment, the plaintiff would have been permitted to strike out all the demises for "the declaration but that on which the verdict was givem The omission to strike' out these demises was only, therefore, an omission of form; dud the Act of Congress of 1789, ch. 20, see. 32, expressly provides that no judgment shall be reversed for…

<p>The State of Khode Island, on leave granted at January Term, 1838, to amend a bill previously filed by the state against tile state of Massachusetts, amended the bill at this term, by inserting in it references to papers filed at the term of 1838. The state of Massachusetts was allowed until the term of 1840 to answer.</p> <p>The rules which govern Courts of" Equity as to the. allowance of time for filing an answer and other proceedings in suits between individuals, will not be applied by the Supreme Court to controversies between states of the Union. The parties In such cases, must, in the nature of things, be incapable of acting with the promptness of an individual.</p>

<p>A bill Was filed in the Circuit Court of the southern district of New York, praying that a contract foy the purchase and sale of a portion of a tract of land in Goochland county, in the state, of Virginia, on which there was, a gold mine, should be rescinded. The purchaser alleged fraudulent misrepresentations as to the gold mine; and other arts of the seller, by which he was induced to make the purchase. , The Court affirmed the decree of the Circuit Court of the southern district of New York, by which the contract whs ordered to be rescinded.</p> <p>It is an ancient and well established principle, that whenever suppressio veri, or mggestio falsi occur, and more especially both together, they afford sufficient ground to set aside any release or conveyance.</p> <p>The party selling property must be presumed to know whether the representation which he makes of it is true or false. If he knows it to be_fálse, that is fraud 'of the most positive . kind; but if he does not know it, then il can only be from gross negligence: and in con- , •teftiplation of a Court of Equity, representations fqprided on a mistake resulting from such Jbcgjjgence is fraud. The purchaser confides in them upon ther assumption that the owner knows his own property, and truly represents it. And it is immaterial to the purchaser whether the misrepresentation proceeded froth mistake or fraud. The injury to him is the same whatever may have been the motives of the seller. The misrepresentations of the seller of property, to authorize the rescinding a contract of saledjy a Court of equity, must be of something material, constituting an inducement or motive to purchase; and by which he has been misled to his injury. It must be in something in which the one party places a known trust and confidence in the other.</p> <p>Whenever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has not seen, but which he buys upon the representation of the' seller, relying on its truth,' then the representation in effect amounts to a warranty: ■ at least the.seller is hound to make good the representation.</p>

Held: that this execution issued illegally, in consequence of the lapse of time between the rendition of the judgment, and the issuing-e -execution in 1836.

The.plaintiff in error instituted a suit on.a bill of exchange, dated at New York on the 11th of. March, 1837, drawn' by D. Carpenter on Sayre, Converse and Company, Mobile, Alabama, for $7287 78 jn,favour of the defendants, Pond, Converse, and .Company; payable and negotiable at the Bank of Mobile, sixty days after date.' The plaintiff iii error was a citizen of New York, a^d the drawers and endorsers of the bill were citizens of Alexandria, Alabama.

Moses E. Levy, á citizen, of the United States; presented a petition to the judge , of the .Superior Court of East Florida, on the 18th day of May, 1829, claiming title to a tract of land containing .four-: teen thousand five hundred' acres, situated in East Florida, being part,of thirty thousand acres-originally conceded to Fernando de la Maza Arredondo, in full property, by Governor Don Jose Coppinger, on the 14th day of .March, 1817, in consideration of services-rendered…

Mr. Grundy, Attorney Géneral of the United States, submitted this case to the Court, alleging that the claimant relies on a concession made by Governor Coppinger for 16,00Q acres of land, dated September 12th, 1816.

. Andrew Burgevin, on the 21st day of May, 1829, presented a petition to the' judge of the Superior Court for the district of East Florida, claiming a tract of land of five miles square, or sixteen thousand acres, situated in. the district of East Florida; under a'title derived from a grant made to him by the Spanish government, on the 13th day of January, 1818.

APPEAL frota the Superior Court of East Florida. In the Superior Court of East Florida, Fernando de la Maza Arredondo filed a petition praying a confirmation of a concession made to-him,-in consideration of services, by Don Jose Coppinger, on the 24th of March, 1817; he being then Governor of East Florida, a ^dependency at that time of the crown of Spain. The Court confirmed the concession, and. the United States pro-seq'nted this appeal,

Held: that as the word weight had two meanings, gross and neat, this was such a latent ambiguity as to warrant the introduction of parol testimony. 1 Nott and M'Cord, 45.

Held: that the deed of 1809, vesting the property in Mrs. L.’s trustees, was effectual, according to.the laws of Virginia, to protect the .title thereto, against the subsequent creditors, or pur-' . chasers from R. B. Lee, and that the removal of R, B. L. and his wife, into the District of Columbia, with the property conveyed to. the trustees'for the use of Mrs. L., did not affect or impair the validity of the deed of…

<p>ON appeal from the Circuit Court of the United States for the county of Washington in the District of Columbia.</p>

Held: that although there was not sufficient- evidence to authorize a decree for title, still Thompson had, by the rules of a Court of Equity, a lien for the money expended on the improvements: and the cause was remanded with a mandate that the property should be. advertised and sold, and the proceeds of the sale be applied: first, to the. satisfaction of the money expended by Thompson in making the improvements; “ and…

Held: that want of a survey does not interfere with the title of a grantee.

Held: that there was ho érror in the judgment of the Circuit Court.

This was an action of ejectment, brought in the Supreme Court of the state of Ohio, by the plaintiff in error, against the defendant in error. The declaration, common consent rule, ánd plea of not guilty, are in the usual form, according to .the practice in Ohio. Upon these pleadings the case was tried in the Supreme Court for the county of Scioto, and a general verdict of not guilty was found for the defendant, Marsh.

The original action was assumpsit on a policy of insurance, dated July 17, 1833, upon the .schooner called the Maryland owned ’by said Polleys, for the term of one year, commencing on the 11th of said July — sum insured @3,000. The schooner during the said year, on June 10, 1834, was totally lost. The general issue was pleaded.

Held: that the wife took under the will, óne-third of all the real estate of the testator, during her life, and that his son took a fee simple in one-third of the properly given to the brothérs and sisters of the testator, subject to the devise to his mother, and a fee simple in all the real estate, specifically devised to him, subject to tire devise of one-third to his mother, during her life.

<p>ON-a certificate of division in opinion from the Circuit Court of the United States for the eastern district of Virginia.</p> <p>James E. Hardyman was indicted in the Circuit Court of the eastern district of Virginia, for buying, receiving, and concealing treasury notes of the United States, knowing them to have been stolen. The treasury notes were alleged to have been-stolen from the mail of the United States by Winston, a negro man, or by persons unknown. Winstoiu-was at the same time indicted for robbing the mail of the United States, of ten treasury notes. The indictment contained four counts, charging the defendant with receiving treasury notes, bearing interest at one per centum, and at five per centum per annum;</p> <p>The defendant moved the Court to quash the indictment, upon the ground that the papers described in the said indictment are not promissory notes under the act of Congress approved on the 3d day of March,' 1825, under which the prisoner is indicted; and the act of Congress, approved the 42th day of October, 1837, by virtue of which the said notes were issued, describes them as treasury notes, and does not provide, nor does any’Other'act of Congress provide any penalty for stealing these notes from the mail of the United States, or receiving them, knowing them to be stolen; and upon this motion the Court being divided in opinion, the said indictment was not quashed.</p> <p>The Attorney for the United States, further proceeding in the case, offered as evidence to the jury, a treasury note for fifty dollars, payablé in one year, bearing interest at the rate of one M. per centum.</p> <p>The counsel for the accused, moved the Court to exclude it from the jury as evidence, upon the ground that itflóes not answer the description of any one of the notes set forth in the indictment, as it bears interest after the rate neither of five per-centum nor of one per centum) but bears an interest after the rate of one mill per centum, as signified by the letter “M” after the word “one” upon the face of the .said note: and to sustain tnis motion, the defendant proved, by the . collector of the port of Richmond, that he receivé'd notes such as that above described, as notes bearing interest after the rate - of one mill per centum, and not one per centum,-and. fhe government so received them from him; and the'letter M. aforesaid was understood to signify and be/intended to mean mill: and also proved that the Secretary of the Treasury had issued, as far as -the said collector,' and another witness who derived his impression from the Treasurer of the -United States, and the officers of the government, knew and believed, no treasury note bearing interest after the rate of. one per centum. Upon this motion the Court was also divided in opinion, not being satisfied that thé nóte did appear by its face to bear inv terest after the rate of one mill, and not being satisfied that it was. competent to the defendant by parol- evidence .to explain a.ny word or letter upon the face of the skid n'ote, so as to show what its meaning was, either by resort to any definition of it, or to the exposition of it by the practice of the treasury department, and the officers of' the government, and the public; and, therefore, that it was not competent to the defendant so; to explain the letter M aforesaid, which appears on the face of the said note, and of which no noticé is taken in- the indictment, for the purpose^ of showing that by that, letter the makers of the said note intended to fix the rate of interesj; at one mill per centum. And thereupon, upon the motion of the accused, and with the consent Of the Attorney for the United States, the Court adjourned to the Supreme Court of the United ¡States for its decision, the following-questions, viz.:—</p> <p>. 1.' Are the treasury notes 'issued by authority óf the. act of Con-gross passed on the 12th day óf October, in the year 1S3S, promissory notes within' the meaning of the act of Congress, approved on' the 3d day of March, 1825, under-which the prisoner is indicted’; and is. theré a sufficient averment in the indictment in this cause of the stealing and. receiving of such treasury notes ? .</p> <p>2. Is the letter “ M,” which appears upon the face of the note¡ offered as evidence, a material part of'the description of the note ?</p> <p>3. Would it be proper to receive parol, evidence for the purpose of explaining the meaning of the said letter M, and proving the practice and usage- of the treasury department and officers of the government and others, lawful receivers of similar- treasury notes, in order to-show thereby the meaning intended to be attached, and actually .attached to the said letter M by the treasury department and others; and that by such meaning the said treasury note bears one mill per centum interest; and not one per centum interest ?</p> <p>The case was Submitted to the Court by Mr. Grundy, Attorney ■ General of the United States.</p>

Held: that the.doctrine as to the liability.of common carriers for mere goods, did not apply to them, but that in respect of them, the carrier was liable only for ordinary neglect. The Court seem to have considered that case as being a sort -of intermediate one between goods and passengers.

Held: “that the dormant title of the Indian tribes remained to be extinguished by the government, either by purchase or conquest; and when that was done, it enured to the benefit of the citizens who had previously acquired a title from the crown, and did not authorize a hew grant of the lands, as waste and unappropriated.” And the state having succeeded to the royal rights, could'appropriate the waste lands within her…

ON a certificate of division from the Circuit Court of the United States for the district of Mississippi. This was an action of assumpsit founded on the second of a foreign bill of. exchange, by the endorsee against the endorser, for non-acceptance. The plaintiffs declared, upon the “second’? of the set of exchange, which “ second of the set” was protested for nonacceptance; and the same, with the protest thereto attached, was read in evidence to the jury.

Held: that the certificate of a consul, under his consular seal, is not a sufficient authentication of a foreign law to make it evidence; it not being one of his consular fimctiens to grant such certificates. And also, that the proceedings of a foreign Court, under the seal of a person who styles himself the Secretary of Foreign Affairs in Portugal, is not evidence.

AT the August term, 1838, of the-Court, Duncan N. Hennen filed a petition for a mandamus to "the Honourable Philip K. Lawrence, judge of the District Court of the United States for the eastern district of Louisiana, requiring the said judge to restore Duncan N: Hennen-to the office of clerk of, the District Court. Coxe, of counsel for the petitioner, filed' and read the petition which was addressed to the.

Ex Parte Hennen, 38 U.S. 230 (1839), was a decision of the United States Supreme Court concerning the removal power under the Appointments Clause.

Held: that the suit could not be sustained, after so long á time from the entry of the merchandise. Held, that silk hose, and all manufactpres of silk, of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, are free of duty.

ON the 23d December, 1838; an information-was-filed by the district attorney, on behalf óf the United States, in the District Court of the United States, for the southern district of New York, alleging that the goods therein described had been seized by the collector as forfeited to the use of the United States, for violation of the revenue laws, Sec. See.;, and prayed the usual process and monition of the Court, and the condemnation of the said goods.

ON a certificate of division, of opinion from the Circuit Court of the United States, for the southern district of New York. This cause came before the Court on a certiorari to the Superior Court of the city of New York, the action being in assumpsit to' recover from the defendant the sum of #148 29, received by him as collector of the port of New York, for duties on an importation of silk hose.

In November, 1836, the appellant filed a bill in the Circuit Court against Alpheus Hyatt and others. The following were the important facts'in the case, as .sustained by the evidence: In December, 1818, William Cocklin leased to James Shields a lot of ground in the city of Washington, for ten years, from January 1st, 1819, for the rent of thirty-five dollars per annum.

Held: that although the power of attorney may not have been executed in exact conformity to its terms; and may not have authorized the giving of a joint and several note; a question the Court did not decide; yet the receipt of the proceeds of the note by the attorney, and the appropriation thereof to the payment of the former note, was sufficient ' evidence to sustain file- money counts in the declaration.

Held: without a'dissenting voice, it is believed, that this act places promissory notes on a footing with bonds and other specialities, in the order of distribution. The term “ equal dignity” could not be satisfied without such a decision. Now, the record in this case shows, and the case stated shows, that the judgment here sued on was-,founded on a promissory note.

Held: that if the ship was. run on shore and lost, the goods should not contribute, because there could be no contribution unless the ship was saved, (quia nihil contribuitur, nisi salva nave:) he expressed his pointed disapprobation of the decision, saying, that it exhibited very little acuteness, for in all such cases the, goods cannot otherwise be saved, and the peril compels us to thé act; and the safety of the ship,…

the. county of Washington; in the District of Columbia. The plaintiffs in error, executors of Mary Janees, instituted an action of covenant against the defendant, on the folk-wing instrument-of writing: Whereas, Mary James has executed her bond or note; dated the 28th day of November, 1828, payable to me on demand, for the sum of twenty-six hundred and twenty dollars, which said bond or note was merely.loaned to me for the purpose of raising -money.upon, and whereas, 1‘have,…

.APPEAL' from the District Court of the United States, for the eastern district-of Louisiana. On the second of March, 1837, the following decree of the Supreme Court Of the United States, was produced in open Court, in the District Court of the United States, for the eastern district of Louisiana.

Held: that the plea was properly stricken out. Where, a deed of. trust was made to secure the payment of certain promissory notes, in an action upon the deed the nqtes maybe read in evidence to prove the amount of. the debt intended to be secured by the deed, without the notes having been assigned by the payees to the' plaintiffs, the trustees-in the deed. .

A hill was filed on-a subpoena, which had issued from the.Circuit Court on the fifth day of November, 1831; by Ann Lupton, thé splé devisee and legatee of David Lupton the younger,:for the purpose of surcharging and falsifying the accounts of the executor, Phineas -Janney, which had been settled, in thrée accounts rendered by him to and aÚo ed by the Orphans. Court of Alexandria.. The first account .was rendered-and was settled on the 26th of October, 1816.

Held: that when a vessel was repaired in a port of a gtate to which she did not belong, there was a lien by the general marine law; but if the repairs were made in her own state, there was. no lien, unless established by the- local laws of such state. The General Smith, 4 Wheat. 438 . 4 Peters’ Cond. Rep. 439.

Held: that this is not a 'case in-which a mandamus will lie.- The appropriate redress, if any, is to be obtained after the final-decision shall be had on the cause, by appeal. A writ of mandamus is not the appropriate remedy for any errors which may be made in a cause; by a judge in the exercise of his authority; although they may seem to bear harshly or oppressively on the party.

Held: that tlie payment made by order of the District Court, to the minor children of William Emerson, as hiS legal heirs, was rightfully made: and that the same cannot be considered in their hands as assets for the payment of the debts of their father.

ON a certificate of division from the Circuit Court of the United States for the district of Massachusetts. This was an action brought by the plaintiff, a citizen of the-state: of Connecticut, against the ' Suffolk Insurance Company of Boston, Massachusetts, to recover a loss, on part of the schooner, Harriet,- and part of her cargo, they having been insured by the defendants.

Held: that although.the mortgage was not valid as the deed.of the corporation, it Was sufficient to convey a title to the mortgagee in the machinery; and that he could maintain an-action of replevin for them against the marshal. The mortgage was recorded by the town clerk of the place, where the property was, he. being tire proper officer to record such instruments, under the statute of Rhode Island.

Held: that in an action at law the patent from the United States for part of the public lands is conclusive. If those who claim to hold the land against the patent caji show that it issued hy mistake, then this equity side of the Circuit Court is the proper forum; and a bill in Chancery is the proper remedy to investigate the equitiés of the parties.

THIS case came up from the Circuit Court of the United States for the eastern district of Louisiana. . In that Court a statement of the case, had been made by the plaintiff, and the counsel.for the'defendants, upon which the Court gave a judgment for the defendants. The plaintiff petitioiied the Circuit Court for- a writ of error to the Supreme Court, and the same was allowed.

Held: that this appeal from the decree of the Circuit Court ordering the execution’ of the original decree,, is pot a supersedeas to further , proceedings in the Circuit Court, to execute the original decree; and that the Circuit Court is at liberty to use its discretion to proceed to execute the original decree.

Held: in that case, a reversion expectant upon an estate for life, and even upon estates tail, limited to unborn children, to be assets for the payment of specialty ■debts; and accordingly he'decreed it to be‘sold for. that purpose.

IN error from the Circuit Court of the United States for the district of Maryland.

Wilcox v. Jackson, 38 U.S. (13 Pet.) 498 (1839), sometimes nicknamed the "Beaubien Land Case" was a legal action decided by the United States Supreme Court concerning the land under Fort Dearborn shortly after incorporation of Chicago as a town in Cook County, Illinois.

Held: to embrace contracts, and that the members of a corporation were to be regarded as individuals carrying on business in their corporate name, and therefore entitled to the privileges of citizens in matters of contract, it is very -clear that they must at the Same time take upon them-. selyes the liabilities of citizens, and be bound by their contracts in like manner.