Volume 39 — United States Reports

In the Circuit Court- of Alabama, an action was instituted by Sterling H. Gee, the defendant in error, against Thomas Evans, on a bill of exchange drawn by Harris G. Evans in favour of Thomas Evans, on George M. Rives of Mobile, for five thousand three -hundred' and fifty dollars, dated 16th December, 1834, due twelve months after date, negotiable and payable at the office, of discount and deposite of the Branch Bank of the United States at Mobile; for value received; and…

Held: made and concluded, by and between them, at Philadelphia, the 26th o.f June, 1794; in which, among other things, it was stipulated that the boundaries mentioned in thó fourth article of'the ,said treaty of Holston should be actually ascertained and marked, in the manner prescribed by the' said, article, whenever the Cherokee nation should have ninety days’ notice of the time and place at which the commissioners of…

Held: that at the time of the contract of thé bank, they.had-not a fee simple in the lot which could be conveyed to Guttschlick.

Held: That he was entitled to recover the same. The letters testamentary granted in Maryland, entitled the executor of Edward Coursault to recover, with out his having the letters of administration granted by the Orphans Court of Washington repealed or revoked.

Held: that to maintain an action against the drawer of a promissory note or bill of exchange, payable at a particular place, it is not necessary.to aver in the declaration that the note, when due, was presented at the plaeejfor payment, and was not paid; but the place of payment is a material part in the description .of the note, and must be set out . in the declaration.

.In the Circuit Cóurt for Alexandria county, the appellant filed a bill to compél the Chesapeake and- Ohio Canal Company, to pay to him a proportion of the amount of a judgment obtained for a prize, drawn in a lottery authorized to be drawn by “ The Potomac Co.mpaiiy,” the. judgment having been' assigned to the claimant to the amount for.which the bill; was filed.

IbJ error to the Court for the Correction of Errors, of the state of New York. Mr. Crittenden moved to dismiss this writ of error on the ground that the Court had no jurisdiction. This motion was opposed by the counsel for the plaintiff in error.

This case was before the- Court on appeals from both the parties, and the. proceedings and decision on the case are reported in 7 Peters, 608. The proceedings in the Circuit Court'of Kentucky, subsequent to the mandate issued from the Supreme Court, were the only matters in controversy on this appea.1.

moved the Court to dismiss this writ of error for want of jurisdiction. .The action was originally instituted in the Ninth Judicial Circuit of the state, of Missouri, on a promissory note given by the defendant in error to the Commonwealth Bank of Kentucky, for the notes of that bank, to the amount of the promissory note.

Held: that the appearance of the defendants in the Circuit ■ Court, by attorney, was proper; and that if any exceptions existed to this form of the plea, they should have been urged to the receiving of it when it was offered, and are not causes of demurrer. Held, that the Circuit Court of Mississippi had no jurisdiction of the casé.

Held: that the insolvency of the estate, judicially declared under the statute of-Alabama, is not sufficient in ■ law to "abate a suit instituted in the Circuit Court of the United States, by a citizen of another state, against the representatives of a citizen of Alabama; The exceptions in the sixth section of the law of Alabama, in favour of debts contracted out" of the state, prevent the applier u, i of the statute, or…

<p>A decree for a specific performance of a contract to sell lands, refused, because a definite and certain contract was not made; and because the ¡rarty who claimed the performance had failed to make it definite and certain on his part, by neglecting to. communicate by the return of the mairconveying to him the proposition of the vendor, his acceptance of the terms oifered.</p> <p>The "case of Eliason vs. Henshaw, 4 Wheat. 225, cited, and the principles'of the decision re-affirmed.</p> <p>If it be doubtful whether an agreement has been concluded, or is a mere negotiation, Chancery will not decree a specific performance.</p>

Held: that a sheriff’s sale might be proved, 1. By the deed of the sheriff; or, 2. By the return of the sheriff on the fieri facias; 3. By'a memorandum of the sale, to take the case out of the statute of frauds.' .Cited also, 6 Gill, and Johns. 306. The marshal made no deed in this case, and the return is sufficient. The only objection which has any apparent force, is to the time when the- return was made.

<p>A claim for the sum awarded by the commissioners under the treaty of indemnity with France of July fourth, 1831.</p> <p>The powers and duties of the commissioners under the treaty of indemnity with France, were the same as those which were exercised under the treaty with Spain, by which Florida was ceded to the United States ; as decided in the cases of Comegys vs. Vasse, 1 Peters, 212, and Sheppard vs. Taylor and others, 5 Peters, 710. There is a difference in the words used in the Treaty and Act of Congress, when defining the powers'of the Board of Commissioners; but they mean the same thing. The rules by which the Board acting under the French treaty is directed to govern itself in deciding the cases that come before it, and the manner in which it is constituted and organized, show the purposes for which it was created. It was established for the purpose of deciding what claims were entitled to share in the indemnity provided' by the treaty; and they of course awarded the amount to such person as appeared from the papers before them to be the rightful claimant. But there is nothing in the frame of the law establishing the Board, or in the manner of constituting and organizing it, which would lead to the inference that larger powers were intended to be given than those conferred on the commissioners under the Florida Treaty.</p>

Held: that the assured were entitled to recover. A loss by collision, without any fault on either side, is a loss by the perils, of the sea, within the protection of the policy of insurance. So far as the injury and repairs done to the Paragon itself extend, the underwriters are liable for all damages.

Held: that it was not necessary to make the subsequent endorser, who was alleged to have made the payment, a party, to the injunction bill.' In such a bill an allegation that the amount due on the bill of exchange was paid, is sufficient; without stating the value or nature of the-effects out of which the payment was ■ -.-made.

<p>The legislature of the state of New York, on the 18th of April, 1823, incorporated “The New York and Schuylkill Coal Company.” The act of incorporation was granted for the purpose of supplying the city of New York and its vicinity with coal; arid the company having, at great expense, secured, by purchase, valuable and extensive coal lands in Pennsylvania, the ’legislature of New York, to promote the supply of coal as fuel, granted the incorporation, with the usual powers of a body corporate, giving' to it the powers to purchase and hold lands, to promote and attain the objects of the incorporation. The recitals in .the act of incorporation show that this power was granted with special reference to the purchase of lands in the state of Pennsylvania. The right to hold the lands so purchased depends on the assent or permission; express or implied, of the state of Pennsylvania.</p> <p>The policy of the state of Pennsylvania, on the subject of holding lands in the state by corporations, is clearly indicated by the act of the legislature of Pennsylvania, of April 6, 1833. Lands held by corporations-of the state, or of any other state, without license from the commonwealth of Pennsylvania, are subject to forfeiture to the tommonwealth. But every such corporation, its foeffee or foeffees, hold and retain the same, to be divested or dispossessed by the commonwealth,-by due course of law. TJie plain interpretation of this statute is, that until the claim to a forfeiture is asserted by the state, the land is held subject to be divested by due course of law, instituted by the common-, wealth alone, arid for its own use.</p> <p>The Supreme Court of Pennsylvania having decided that a corporation has, in that state, a right to purchase, hold, and convey land, until some act is done by the government, according to its own laws, to vest the estate in itself; the;estate may. remain in a corporation so purchasing or holding lands: but such estate is defeasible by the commonwealth. This being the law of Pennsylvania, it must govern in a case where land in Pennsylvania had been purchased by a corporation created by the legislature of New York, for the purpose of supplying coal from Pennsylvania to the city of New York.</p> <p>The ease of Fairfax us. Hunter, 7 Cranch, 621, cited with approbation.</p> <p>In the case of the Bank of Augusta vs. Earle, 13 Peters, 584, and in various other cases decided in the Supreme Court, a corporation is considered an artificial being, existing only in contemplation of law; and being a mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. Corporations created by statute must dépend for their- powers, and the mude of exercising them, upon the true construction of the statute,</p> <p>A corporation can have no legal existence out of the sovereignty by which it is created; as it exists only in contemplation of law, and by force of the law: and when that law ceases to operate, and is no longer obligatory,' the corporatiori can have no existence; It must dwell in the plape of its creation, and cannot migrate to another sovereignty. But although it may live and have its being in that state only, yet it does not follow that its existence there will not be recognised in other places,; and its residence in. one state creates no insuperable objection to its power of contracting in another. The corporation must show that the law of its creation gave it authority to make such contracts. Yet, as -in the case of a natural person, it is not necessary that it should actually exist in the sovereignty in which the contract is made. It is sufficient that its existence, as an artificial person in the state of its creation, is acknowledged and jeeognised -by the state or nation where the dealing takes place; and that it is permitted by the laws of that place to exercise the powers with which it is-endowed.</p> <p>Every power which a corporation exercises in another state, depends for its validity upon the laws of the sovereignty in which it is exercised: and a corporation can mafie no valid contract, without the sanction, express or implied, of such sovereignty; unless a case should be presented in which the right claimed by the corporation should appear to be secured by- the Constitution of the United States.</p>

In May, 1338, in the Circuit Court of the United States for.the Ninth Circuit and Eastern District of Louisiana, Richard Raynal Keene filed his petition against Isaac T. Preston, as executor of James Brown, deceased, alleging that, by virtue of a notarial contract, made iirNew Orleans, on the 21st day of August, 1807, the said James Brown and his brother, Samuel' Brown, also since deceased, became bound for a valuable consideration", &c., to convey and deliver to the…

Held: that they ought not to be interpreted according to their literal meaning; bi t ought to be construed as equivalent to the words, “ without the jurisdiction of the statí ” Ac- - cording to this interpretation, a person residing in another state of the Union as “ beyond seas,” within the meaning of the act of Assembly; and therefore exceptef from its operation, until he should come within the limits of Maryland.

Held: that no writ of error would lie on this having been done in the Circuit Court. In this case, if notice of the motion to the Court to extend the demise was necessary, it was -given. The presumption always.is, that the requisites to a proceeding' by a Court have been complied with. . A printed argument, by Mr. Wickliff, for the plaintiff in error, was handed to the Court.

<p>There are cases in Chancery where amendments are permitted at any stage or progress- of the cause, as where an essential party has been omitted: but amendments which change the character of the bill or answer, so as-to make, substantially, a new case, should rarely.if ever be admitted, after the cause has been set for hearing; much less after it has been heard.</p> <p>A decree dismissing a bill in Chancery, generally, may be set' up in bar of a second bill: but .where the bill has been dismissed on the ground that the Court had no jurisdiction, which shows that the merits were not heard, the dismission is not a bar to a second bill.</p> <p>Where parties by agreement dispense with the usual formalities, and no injustice results from the mode‘adopted, the Court should not on slight ground set aside the proceeding.</p> <p>It is,a general rule that a tenant, shall not dispute his landlord’s title-; but this rule is subject to certain exceptions. If a tenant disclaims the-tenure, and claims the fee in his own right, of which 'the landlord has notice, the relation of landlord and tenant is put an end to, and the tenant becomes a trespasser; and he is liable to be "turned out of possession, though the period of his lease is not'expired.</p> <p>The same relation as that of landlord and tenant subsists between a trustee and a cestui que trust, as it regards the title.</p> <p>A Court of' Equity cannot act on a case which is not fairly made out by the bill and answer. But it is not necessary that these should point out, in detail, the means which . the Court shall, adopt in giving relief. Under the general prayer for relief, the Court will often extend relief beyond the specific prayer, .and not exactly in accordance with it. Where a case for relief is made out in the bill, it may be giveq by imposing conditions n the complainant, consistently with the rules of equity, in the discretion of the Court.</p>

Held: that the facts set up in th.e answer, with the' receipt of his co-executor, released the defendant from his trust; and from all responsibility under it.

On the 26th November, 1833, the appellant filed a petition in the .Circuit Court of the Eastern District of Louisiana, claiming under conveyances to him from Daniel Clarke, deceased, a tract of land, of nine hundred and forty-seven acres, part of thirty thousand arpents, which in 1804 had been, granted by the Spanish intendant, Don Juan Ventura Morales, in the name of the Spanish government, to Don Gilberty Andry, who was the vendor of part of the tract to Daniel Clarke.

Held: that'this was regular. There is no dpubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulations of the 'parties, or it may arise by implica- ' ■ tion from the very nature of the property, or the avowed objects of the seller-or the purchaser.

Held: that under the act of Maryland, “ relating-to Illegitimate Children,” they inherited the estate of their deceased brother.

This case was brought before the Court at January term, 1836, bn a writ of error, prosecuted by the present appellant, seeking to reverse the judgment of the Circuit Court in an action instituted against him on a joint and several bond, under seal, made by him and others, to the Bank of Mount Pleasant, for the payment of .a sum of money stated m the bond, to the bank, upon which ■obligation the bank had loaned the sum of twenty-one hundred dollars,"and had paid the same to…

Held: that it would be unjust to the' complainant not to give an opportunity of being heard according to tiro real state of the case, between the parties; and to shut out from consideration the many facts on which he relies to maintain his suit. • It is a general rule, that a plea ought not to contain more.defences than one.

Held: that the device of covering properly as neutral, when in truth it was belligerent) is not contrary to the laws of war or of nations. Contracts made with underwriters in relation to property thus covered, have always been enforced in the Courts of a neutral country, where the true character of the property, and the means taken to protect it from capture have been fairly represented to the insurers-.

Held: that the .Circuit Court had jurisdiction of the case., The decisions of the Supreme Court have been uniform, and as'declared at the present term in the case of The Commercial and Rail Road Bank of Vicksburglos.

Held: that the act of Congress of 19th May, 1828, gives the debtors imprisoned under executions from the-Oourts of the United Spates, at the suit of the United States, the privilege of jail limits in the several states, as they were fixed by the laws of the several states at the date of thát act.

Held: that the instruction was correct. The known custom of the bank, and its ordinary modes of transacting business, including the prescribed forms of notes offered for discount, entered into the contract of those giving notes for the purpose'of having them discounted at the bank; end the parties to the note must be understood as having agreed to govern themselves by such customs and modes of doing business: and this,…

Held: that as Buchanan was the patentee of the land, although he made the deed in pursuance of the decree of the Circuit Court of Virginia, the decree fcould add nothing to the validity of the conveyance; and therefore it was wholly unnecessary to prove the decree. The deed was good without the decree.

Held: that by the regulations established on the 35th November, 1818, by Governor Coppinger, the grant had become void, because of the non-improvement, and the neglect' to settle the land granted. The existence of a foreign law, especially when unwritten, is a fact to be proved like any other fact, by appropriate evidence.

Held: that the lot lying east of the lot granted in 1802, by the Spanish government, to Forbes and Company, did not pass by that grant to Forbes and Company; that the act of Congress of 1824, did not vest the title in the lot east of the lot granted in 1802 in Forbes and Company; and that the heirs of Pollard, under the sScond section- of the act of 1824, which excepted from the grant to the city of Mobile, &c., lots held…

Held: That in order- to a conviction, it was not necessary on the part of the prosecution to produce a living witness; if the jury should believe from the written testimony that the defendant made a false and corrupt oath when he entered the goods.

Held: that this objection cannot,' in point of law, be maintained. The patent was issued under the . great seal of the United States, and is signed by the President, and countersigned by. the Secretary of State. It is a presumption of law, that all public offieers, and especially such high functionaries, perform their proper official duties, until the contrary is proved.

Held: that to constitute the offence denounced, in the (second section of the act of 10th May, 1800, it was not necessary that there should have been an actual transportation or carrying of slaves in the vessel of the United States, in which the party indicted served. 2.

<p>A grant of land by the government of Florida, made before the cession of Florida to the United States by Spain, confirmed.1 every point involved in the ease having been conclusively settled by the Court in their former adjudications in similar cases. •</p>

In the Inferior Court of Richmond county, in the state - of Georgia, Thomas M'Gran, the defendant, instituted a suit by attachment against the plaintiffs in error, to recover damages for the sale of two hundred bales of cotton, shipped by him. to the plaintiffs in error, as his factors; the cotton having been sold for a less price than the same would have produced had the sales been made according to the instructions of the shipper.

Held: that the judgment of the Circuit Court was correct. In the case of Kendall vs. The United States, 12 Peters, 527, it was decided by the Supreme Court that the Circuit Court of Washington County, for the District of Columbia, has the power to issue a mandamus to an officer of the federal government, commanding him to do a ministerial act.

ON a certificate of division from .the Circuit Court for the Southern District of New York. ■ An action of debt was instituted in the District Court for the Southern District of New York, by the United States against the defendant, as master of the steamboat New York, to recover- the penalty of three hundred dollars imposed by the ninth section of the act of Congress, of the 7th'of July, 1838, entitled, “An act for the better security of the lives of passengers on board…

Held: that the President of the United States has power, under the act of Congress of 3d of March, 1807, to make the contract on which this suit was instituted. The power over the public lands is vested in Congress by the Constitution, without limitation, and has been considered the foundation on which the territorial governments rest.

Held: that the commitment was legal; but Holt, Chief Justice, declared .the contrary.

Held: — -That the judge in office hád' a discretion to set aside the judgment.by granting a new trial; but if he. did not exercise his discretion by doing it as a judicial act, he was bound to sign the judgment as a mere ministerial aet required by law; in order to-give one party aright to execution,, and the other a right of appeal or writ of error.

Held: that it applied to the great writ of habeas corpus ad subjiciendum, providing the “means by which this great constitutional privilege should receive life and activity,” that the generic term habeas corpus* when used singly and without additions, means the great writ now applied for; “ and in that sense it is used in the Constitution.” 4 Cranch, 94 —100.