Page images

EJECTMENT (Continued.)

establishment on the Mississippi, followed by actual possession and improve-
pent, entitled the occupant to 640 acres, including his improvements, although

the Indian title was not then extinguished. Marsh v. Brooks, 514.
4. It was not the practice of the Spanish government to make treaties with the In

dian tribes, defining their boundaries; but to provent settlements upon their

lands without special permits : such permits, however, were usual. Ibid.
5. The construction of the treaty between the United States and the Sac and Fox

Indians, must be that the latter assented to an occupancy which was as noto-

rious as their own. Ibid.
A The act of Congress, approved April 29, 1816, (3 Stat. at Large, 328.) confirm.

ing certain claims to land, confirmed this one, although the Recorder of Land
Titles, in his report, made in 1815, had added these words, " if Indian title

extinguished.” These words were surplusage. Ibid.

1. The court having erroneously refused to allow the plaintiff to offer a paper in

evidence, as a disclaimer of part of a patent, afterwards refused to allow the
defendants to offer the same paper in evidence for the purpose of prejudicing
the plaintiffs' rights. This last refusal was correct. The reason given
was erroneous ; but this is not a sufficient cause for rcversing the judgment.

Sislbey v. Foote, 219.
2. The courts of the United States have not the power to order a nonsuit agair st

the wishes of the plaintiff. Ibid.
3. Under a notice given by the defendantthat the invention claimed by the plain.

tiff was described in Ure's Dictionary of Arts, Manufactures, and Mines, and
had been used by Andrew Ure, of London, it was not competent to give in
evidence a very large book. The place in the book should have been specified.

4. Nor, under the notice, was the book competent evidence that Andrew Ure, of

London, had a prior knowledge of the thing patented. The notice does not

state the place where the same was used. Ibid.
5. Where a certificate of deposit in a bank, payable at a future day, was handed

over by a debtor to his creditor, it was no payment, unless there was an express
agreement, on the part of the creditor, to receive it as such; and the question,
whether there was or was not such an agreement, was one of fact, to be decided

by the jury. Downey v. Hicks, 240.
6. The bank being insolvent when the certificate of deposit became due, there was

no ground for imputing negligence in the collection of the debt by the holder,

as no loss occurred to the original debtor. Ibid.
7. If the evidence showed that, after the maturity of the certificate, the original

debtor a:Imitted his liability to make it good, the jury should have been in-
structed that this evidence conduced to prove that the certificate was not taken

in payment. Ibid.
8. Where an antenuptial contract was alleged to have been made, and the affida-

vits of the parties claiming under it alleged that they never possessed or saw
it; that they had made diligent inquiry for it, but were unable to learn its pre-
sent existence or place of existence; that inquiry had been made of the guard-
ian of one of the children, who said that he had never been in possession of
it, and did not know where it was; that inquiry had been made at the record-
ing offices in vain, and that the affiants believed it to be lost, secondary

proof of its contents ought to have been admitted. De Lane v. Moore, 253.
9. Whether recorded or not, it was binding upon the parties. If recorded within

the time prescribed by statate, or if reacknowledged and recorded afterwards,

notice would thereby have been given to all persons of its effect. Ibid.
10. If it was regularly recorded in one State, and the property upon which it acted

was removed to another State, the protection of the contract would follow the

property into the State into which it was removed. Ibid.
11. But where no suit was brought until eight or nme years after the death of the

husband, and then the one which was brought was dismissed for want of pro-
secution; another suit against the executors who had divided the property,

comes too late. Ibid.
12. Personal property, wherever it may be, is to be disturbed in case of intestacy,

EVIDENCE (Continued.)

according to the law of the domicil of the intestate. This rule may be said to

be a part of the jus gentium. Ennis v. Smith, 401.
13. What that law is when a foreign law applies, must be shown by proof of it, and

in the case of written law, it will be sufficient to offer, as evidence, the official
publi tion of the law, certified satisfactorily to be such. Unwritten fo-
reign laws must be proved by experts. There is no general rule for authenti-
caring foreign laws in the courts of other countries, except this, that no, proof
shall be received," which presupposes better testimony behind, and attainable
by the party." They may be verified by an oath, or by an exemplification of
a copy under the great scal of the State or nation whose law it may be, or by
a copy, proved to be a true copy by a witness who has examined and compared
it with the original, or by the certificate of an officer authorized to give the
law, which certificate must be duly proved. Such modes of proof are not ex-
clusive of others, especially of codes and accepted histories of the law of a
country. See also the cases of Church v. Hubbart, in 2 Cranch, 181, and Tal.
bot v. Seeman, in 1 Cranch, 7. In this case, the Code Civil of France, with
this indorsement, “Les Garde des Sceaux de France a la Cour Supreme
des Etats Unis," was offered as evidence to prove that the law of France was
for the distribution of the funds in controversy. This court ruled that such
indorsernent was a sufficient authentication to make the code evidence in this
case, and in any other case in which it may be offered. By that code, the
complainants named in this suit as the collateral relations of General Kosci-
usko, arc entitled to receive the funds in controversy, in such proportions as

are stated in the mandate of this court to the court below. lbid.
14. The documentary proofs in this cause, from the Orphans' Court, of the genea-

logy of the Kosciusko family, and of the collateral relationship of the persons
entitled to a decree, and also of the wills of Kosciusko, are properly in evi-

dence in this suit. Ibid.
15. The record from Grodno is judicial; not a judgment inter partes, but a foreign

judgment in rem, which is evidence of the facts adjudicated against all the

world. Ibid.
16. Where the contract between the owner and the builder, (who was also the ca

penter.) stipulad for a forfeiture per diem in case the carpenter should delay th
work, the court below ought to have allowed evidence of such delay to be giver
to the jury by the defendant, under a notice of set-off, and also evidence that
the work and materials found and provided upon and for the building, were
defective in quality and character, and far inferior in value to what the con

tract and specification called for. Winder v. Caldwell, 434.
17. Where the marshal of the District of Coiumbia engaged the services of a clerk

for å stipulated sum per annum, and the service continued without any new
agreement, and the jury were instructed that they might imply a new agree-
ment to pay the clerk at a different rate, this instrnction was erroneous. There
was nothing in the evidence from which the jury could imply such aew agree-

ment. Nutt v. Minor, 464.
18. The statute of frauds in Massachusetts, is substantially the same as that of 29

Car. 2, and declares that no contract for the sale of goods &c., shall be valid,
&c., "unless some note or memorandum in writing of the bargain be niede,
and signed by the party to be charged thereby, or by some person thereu niby

hiin lawfully authorized." Salinon Falls Co. v. Goddard, 447..
19. The following memorandum, viz.: "Sept. 19, W. W. Goddard, 12 mos. 300 bales

S. F. drills, 78; 190 cases blue do. 83. Credit to cominence when ship sails;
not after December 1st, delivered free of charge for truckage. The blues, if
color satisfactory to purchasers. R. M. M. W. W. G.” -- is sufficient to take

the case out of the statute. lbid.
20. If the terms are technical or equivocal on the face of the instrument, or made

so by reference to extraneous circumstances, parol evidence of the usage and

practice in the trade, is admissible to explain the meaning. Ibid.
21. It was competent, also, to refer to the bill of parcels delivered for the purpose

of explanation. It was made out and delivered by the seller, in the course of
the fulfilment of the contract, acquiesced in by the buyer, and the goods or-

dered to be delivered after it was received. Ibid.
22. Where a warchouseman gave a receipt for wheat which he did not receive, and

afterwards the quantity which he aciually had was divided amongst the respect-
ive depositors, an action of replevin, brought by the assignee of the fictitious

EVIDENCE (Continued.)

receipt, could not be maintained when, under it, one of these portions was

seized. Jackson v. Hale, 525.
23. Evidence offered to show that the wheat in question was assigned to the defend-

ant, was objected to by the plaintiff in the replevin; but such objection was

properly overruled. The plaintiff had shown no title in himself. Ibid.
24. So, also, evidence was admissible to show that the receiver of the fictitious cer.

tificate had never deposited any wheat in the warehouse. Ibid.
25. The defendants in this case were the assignees of the original warehouseman,

and were not responsible, unless it could be shown that wheat was deposited,

which had come into their possession. Ibid.
26. Where an action was brought against the Commissioner of Patents for refusing

to give copies of papers in his office, and no special damage was set out in the
declaration, evidence of the professional pursuits of the applicant was not ad-

missible. Boyden v. Burke, 575.
37. Where the application was made through a third person, letters of both parties

to this third person were admissible in evidence, as part of the res gesta. Ibid.
1. Where real estate is in the custody of a receiver, appointed by a court of chan.

cery, a sale of the property under an cxecution, issued by virtue of a judgment

at law, is illegal and void. Wiswall v. Sampson, 52.
2. The proper modes of proceeding pointed out, to be pursued by any person who

claims title to the property, either by mortgage, or judgment, or otherwise.

3. Where the copy-right of a map was taken out under the act of Congress, and

the copperplate engraving seized and sold under an execution, the purchaser
did not acquire the right to strike off and sell copies of the map. Stephens v.

Cady, 528.
4. The court below decided that an injunction to prevent such striking off and

Belling, could not issue, without a return of the purchase-money. This de.

cision was erroneous. Ibid.
5. A copy-right is a "property in notion, and has no corporeal tangible substance,"

and is not the subject of seizure and sale by execution. It can be reached by
a creditor's bill in chancery, but in such case, the court would probably have

to decree a transfer in the mode pointed out in the act of Congress. Ibid.
6. A sale of land by a marshal, on à venditioni exponas, after he is removed from

office, and a new marshal appointed and qualified, is not void. Doolittle v.

Bryan, 563.
7. Such a sale being returned to the court, and confirmed by it on motion, and a

deed ordered to be made to the purchaser at the sale, by the new marshal, such

salę, being made, is valid. Ibid.


See Wills.
1. The statute of frauds in Massachusetts is substantially the same as that of 29

Car. 2, and declares that no contract for the sale of goods, &c.; shall be valid,
&c. " unless some note or memorandum, in writing, of the bargain be made,
and signed by the party to be charged thereby, or by some person thereunto

by him lawfully authorized.” Salmon Falls Co. v. Goddard, 447.
2. The following memorandum, viz. :" Sept. 19, W. W. Goddard, 12 mos. 300 bales

S. F. drills, 73; 190 cases blue do. 81. Credit to commence when ship sails;
not after December 1st, delivered free of charge for truckage. The blues, if
color satisfactory to purchasers. R. M. M. W. W.G.”- is sufficient to take

the case out of the statute. Ibid.
3. If the terms are technical or equivocal on the face of the instrument, or made 80

by reference to extraneous circumstances, parol evidence of the usage and

practice in the trade, is admissible to explain the meaning. . Ibid.
4. It was competent, also, to refer to the bill of parcels delivered for the purpose

of explanation. It was made out and delivered by the seller, in the course of
the fulfilment of the contract, acqualesced in by the buyer, and the goods or-

dered to be delivered after it was received. Ibid.

1. In 1804, Cc agress passed an act, (2 Stat. at Large, 277,) " making provision for

INDIANA, STATE OF, (Continued.)

the disposal of the public lands in the Indiana Territory, and for other pur-
poses," in which it reserved from sale & township in each one of three districts,
to be located by the Secretary of the Treasury, for the use of a seminary of

learning. Trustees fc. v. Indiana, 269.
2. In 1806, the Secretary of the Treasury located a particular township in the Vin-

cennes district, for the use of that district; and when, in 1806, the territorial
government incorporated a “Board of Trustees of the Vincennes University,"
the grant made in 1804 attached to this Board, although for the two preceding

years there had been no grantee in existence. Ibid.
3. Under the ordinance of 1787, made applicable to Indiana by an act of Congress,

the territorial government of Indiana had power to pass this act of incorpora.

tion. Ibid.
4. The language of the act of Congress, by which Indiana was admitted into the

Union, did not vest the above township in the legislature of the State. Ibid.
5. The Board of Trustees of the University was not a public corporation, and had

no political powers. The donation of land for its support was like a donation
by a private individu al; and the legislature of the State could not rightfully

exercise any power by waich the trust was defeated. Ibid.
1. Under a policy insuring a şainst the usual perils of the sea, including, barratry,

the underwriters are not liable to repay to the insured, damages paid by him
to the owners of another vessel and cargo, suffered in a collision occasioned
by the negligence of the master or mariners of the vessel insured. Gen. M.

Ins. Co. v. Sherwood, 35%.
2. A policy cannot be so construed as to insure against all losses directly referable

to the negligence of the master and mariners. But if the loss is caused by a
peril of the sea, the underwriter is responsible, although the master did not

use due care to avoid the peril. Ibid.
1. The sixty-second rule of this court, (13 Hogard.) is as follows: "In cases where

a writ of error is prosccuted to the Supreme Court, and the judgment of the
inferior court is affirmed, the interest shall be calculated and levied from the
date of the judgment below, until the same is paid, at the same rate that simi-
lar judgments bear interest, in the courts of the State where such judgment is
rendered. The same rule shall be applied to decrecs for the payment of money,
in cases in Chancery, unless otherwise ordered by this court. This rulo to
take effect on the first day of December term, 1852. Perkins v. Fourniquel,

2. Before this rule, interest was to be calculated at six per cent., from the date of

the judgment in the Circuit Court to the day of affirmance here; and the con.
firmation of the report of the clerk, in the case of Mitchell v. Harmony, (13

Howard, 149,) was under the rules then existing. Ibid.
3. So, also, where a casc from Mississippi was affirmed, at December term, 1851,

the mandate from this court should have been construed to allow interest at
six per cent from the date of the decree it. ine court below, to the date of the
affirmance in this court. Therefore, it was erroneous cither to allow six per
cent, until paid, or to allow the current rate of interest in Mississippi, in addi.

tion to the six per cent. allowed by this court. Ibid.
4. The several rulcs upon this subject cxamined and cxplained. Ibid.
1. A court has a right to set aside its own judgment or decrec, dismissing a bill in

chancery, at the same term in which the judgment or decree was rendered, on
discovering its own error in the law, or that the consent of the complainants

to such dismissal was obtained by fraud. Doss v. Tyack, 297.
2. A statute of Mississippi directs that where the defendant cannot be found, a writ

of capias ad respondendum shall be served, by leaving a copy thereof with the
wife of the defendant, or some free white person above the age of sixteen
years, then and'there being one of the family of the defendant, and found at
his usual place of abode, or leaving a copy thereof at some public place, at the
dwelling-house or other known place of residence of such defendant, he being
from home, and no such free white person being found there willing to receive

the same. *Harris v. Hardemar, 334.
3. The Circuit Court of the United States adopted a rule that the capias should by



JUDGMENT (Continued.)

served personally, or, if the defendant be not found, by leaving a copy thereof
at his or her residence, or usual place of abode, at least twenty days before the

return day thereof. Ibid.
4. The marshal made the following return to a writ of capias: “Executed on the

defendant Hardeman, by leaving a true copy at his residence.” Ibid.
5. This service was neither in conformity with the statute nor the rule. Ibid.
6. Therefore, when the court gave judgment, by default, against Hardeman, and

an execution was issued, upon which a forthcoming bond was given, and
another execution issued, and at a subsequent day the court quashed the pro,

ceedings, and set aside the judgment by default, this order was correct. fbid.
7. When the judgment by default was given, the court was not in a condition to

exercise jurisdiction over the defendant, because there was no regular service

of process, actual or constructive. Ibid.
8. The cases upon this point, examined. Ibid.
9. Moreover, wher, the proceedings were quashed, they were still in fieri, and not

terminated ; and any irregularity could be corrected, on motion. lbid.
10. A bill in chancery will not lie for the purpose of perpetually enjoining a judg-

ment, upon the ground that there was a false return in serving process upon
one of the defen lants. Redress must be sought in the court which gave the

judgment, or in an action against the marshal. Walker v. Robbins, 584.
11. Moreover, the defendant in this case, by his actions, waived all benefit which he

might have derived from the false return; and no defence was made on the
trial at iaw, impcaching the correctness of the cause of action sued on, and, in

such a case, resort cannot be had to equity to supply the omission. Ibid.
1. Where a motion was made, under the 12th section of the Judiciary Act, to re-

move a cause from a State Court to the Circuit Court of the United States,
notwithstanding which the State Court retained cognizance of the case, and it
was ultimately brought to this court under the 25th section of the Judiciary
Act, a motion to dismiss it for want of jurisdiction cannot be sustained. The
question will remain to be decided upon the full hearing of the case. Kanouse

v. Martin, 23.
2. A court of equity has jurisdiction of a bill against the administrator of a de.

ceased debtor, and a person to whom real and personal property was conveyed
by the deceased debtor, for the purpose of defrauding creditors. Hagan v.

Walker, 29.
3. In such a case, the court does not exercise an auxiliary jurisdiction to aid legal

process, and consequently it is not necessary that the creditor should be in a
condition to levy an execution, if the fraudulent obstacle should be removed.

4. It is proper to make a prior encumbrancer, who holds the legal title, a party to

the bill, in order that the whole title may be sold under the decree; for the pur-
pose of such a decree, the prior encumbrancer is a necessary party; but the
court may order a sale subject to the encumbrance, without having the prior

encumbrancer before it, and in fit cases it will do so. Ibid.
5. If the prior encumbrancer is out of the jurisdiction, or cannot be joined with.

out defeating it, it is a fit cause to dispense with his presence, and order a sale

subject to his encumbrance, which will not be affected by the decree. Ibid.
6. Under the tenth article of the treaty of 1842, between the United States and

Great Britain, a warrant was issued by a commissioner, at the instance of the
British Consul, for the apprehension of a person who, it was alleged. had com-

mitted an assault, with intent to murder, in Ireland. In re Kuine, 103.
7. The person being arrested, the Commissioner ordered him to be committed, for

the purpose of abiding the order of the President of the United States. lbid.
8. A habeus corpus was then issued by the Circuit Court of the United States, the

District Judge presiding, when, after a hearing, the writ was dismissed, and

the prisoner remanded to custody. Ibid.
9. A petition was then presented to the Circuit Judge, at his chambers, addressed

to the Justices of the Supreme Court, and praying for a writ of habeas corpus,
which was referred by the Circuit Judge, after a hearing, to the Justices of
the Sapreme Court, in bank, at the commencement of the next term thereof.

10. At the meeting of the court, a motion was made, with the papers and pro-

ceedings presented to the Circuit Judge annexed to the petition, for writs

« EelmineJätka »