1. Under a policy containing the
following clause: "It is declared
and understood, that if the above
mentioned brig, after a regular
survey, should be condemned for
being unsound or rotten, the in-
surers shall not be bound to pay
the sum hereby insured, nor any
part thereof." A survey by the
Master and Wardens of the port
of New-Orleans, which was ob-
tained at the instance of the mas-
ter, who was also a part owner,
and was transmitted by him to
the other part owner, and by the
latter laid before the underwriters
as proof of the loss, stated, that
the Wardens" ordered one streak
of plank fore and aft to be taken
out, about three feet below the
bends on the starboard side; and
found the timber and bottom
plank so much decayed, that we
were unanimously of opinion her
repairs would cost more than she
would be worth afterwards, and
that it would be for the interest of
all concerned she should be con-
demned as unworthy of repair on
that ground. We did, therefore,
condemn her as not seaworthy,
and as unworthy of repair; and,
therefore, according to the pow-
ers vested by law in the Master
and Wardens of this port, we do
hereby order and direct the afore-
said damaged brig to be sold at
public auction for the account of
the insurers thereof, or whomso-
ever the same may concern." It
was held, that the survey was con-
clusive evidence, under the clause,
to discharge the insurers from
their liability for the loss. Jan-
ney v. Columbian Ins. Co.
2. Quære, How far the State legisla-
tures may authorize the condem-
nation of vessels as unseaworthy,
by tribunals or boards constituted
under State authority, in the ab-
sence of any general regulation
made by Congress, under its pow-
er of regulating commerce, or as
a branch of the admiralty juris-
diction? Ib.
418
3. However this may be, the above
condemnation not being specially
authorized by any law of the
State of Louisiana, it would not
have been considered as conclu-
sive evidence within the clause,
had not the condemnation been
obtained by the master, as the
loci ræi sitæ.
Sullivant,
4. The title to lands can only pass by
devise, according to the laws of
the State or country where the
lands lie. The probate in one
State, or country, is of no validity
as affecting the title to lands in
another. Ib. Darby v. Mayer,
469
5. Quære, How far this general prin-
ciple is modified by the provisions
of the constitution, and laws of
the United States, in respect to
the faith and credit, &c. to be
given to the public acts, records,
and judicial proceedings of each
State in every other State?
Darby v. Vayer,
469
6. A duly certified copy of a will of
lands, and the probate thereof, in
the Orphan's Court of Maryland,
is not evidence, in an action of
ejectment, of a devise of lands in
Tennessee. Ib.
1. Although the statutes of limitation
do not apply, in terms, to Courts
of equity, yet the period of limi-
tation which takes away a right
of entry, or an action of eject-
ment, has been held by analogy
to bar relief in equity, even where
the period of limitation for a writ
of right, or other real action, had
not expired. Elmendorf v. Tay-
lor,
152. 168
2. Where an adverse possession has
continued for twenty years, it
constitutes a complete bar in
equity, wherever an ejectment
would be barred if the plaintiff
possessed a legal title. Ib.
3. Note collecting cases as to the effect
of lapse of time. Ib. 177. note a.
1. In Kentucky, a survey must be
presumed to be recorded at the
expiration of three months from
its date, and an entry dependent
on it is entitled to all the notoriety
of the survey as a matter of re-
cord. Elmendorf v. Taylor,
2. An entry in the following words,
"W. D. enters 8,000 acres, be-
ginning at the most southwest-
wardly corner of D. R.'s survey
of 8,000 acres, between Floyd's
Fork and Bull Skin; thence
along his westwardly line to the
corner; thence the same course
with J K.'s line north 2 degrees
west, 964 poles, to a survey of J.
L. for 22,000 acres; thence with
Lewis' line, and from the begin-
ning south 7 degrees west till a
line parallel with the first line will
include the quantity," is a valid
entry. Ib.
3. Such an entry is aided by the no-
toriety of the surveys, which it
calls to adjoin, where those sur-
veys had been made three months
anterior to its date. Ib.
4. The following entry, "I. T.
shall include the quantity of vacant
land, exclusive of prior claims,"
is not a valid entry, there being
no proof that the "two white-ash
saplings from one root, with the
letter K marked on each of them,
standing at the forks of a west
branch of Hingston's fork," had
acquired sufficient notoriety to
constitute a valid call for the be-
ginning of an entry, without fur-
ther aid than is afforded by the in-
formation that the land lies be-
tween those forks. M'Dowell
v. Peyton,
5. The local law of Maryland, as to
the effect of evidence of the pro-
bate of a will of lands, in an ac-
tion of ejectment, is the same
with the common law. Darby's
lessee v. Mayer,
465. 470
6. The act of assembly of Maryland
of 1798, s. 4. ch. 2. art. 3. does
not extend to a will of lands, so
as to make the probate conclu-
sive evidence in an action of
ejectment. Ib.
471
7. By the laws of Tennessee, a will
of lands in another State is not
made evidence in an action of
ejectment for lands in Tennessee.
Ib.
472
ters 10,000 acres of land, on part
of a treasury warrant, No. 9,739, See UsURY.
to be laid off in one or more sur-
veys, lying between Stoner's fork
and Hingston's fork, about six or
seven miles nearly northeast of
Harrod's lick, at two white-ash
saplings from one root, with the
letter K marked on each of them,
standing at the forks of a west
branch of Hingston's fork, on the
east side of the branch, then run-
ning a line from said ash saplings,
south 45 degrees east, 1,600 poles,
thence extending from each end
of this line north 45 degrees east,
down the branch, until a line
nearly parallel to the beginning line
1. The scheme of a lottery contain-
ed a stationary prize for the first
drawn number on each of twelve
days, during which the drawing
was to continue, and the first
drawn number on the tenth day
was to be entitled to 30,000 dol-
lars, payable in part by three
hundred tickets, from Nos. 501 to
800, inclusive. No. 623, one of
the 300 tickets to be given in
part payment of the said prize,
was drawn first on that day, and
decided to be entitled to the prize
of 30,000 dollars. After the
drawing for the day was con-
cluded, the managers reversed
this decision, and awarded the
prize to No. 4,760, which was
drawn next to No. 623, and had
drawn a prize of twenty-five dol-
lars, which they decreed to No.
623. Brent v. Davis, 395
2. In drawing the same lottery, it
was discovered on the last day,
that the wheel of blanks and
prizes contained one blank less
than ought to have been put into
it; and to remedy this mistake
an additional blank was thrown
in. Ib.
3. In an action brought by the ma-
nagers against a person who had
purchased the whole lottery, for
the purchase money, it was held,
that these irregularities did not
vitiate the drawing of the lottery,
the conduct of the managers hav-
ing been bona fide, and the affirm-
ance of their acts not furnishing
any inducement to the repetition
of the same mistake, nor any mo-
tive for misconduct of any de-
scription. Ib.
4. Quære, Whether the ticket No.
623, or No. 4,760, was entitled to
the prize of 30,000 dollars? Ib.
See ADMIRALTY, 29, 30. 34, 35.
1. A., having obtained a patent for
a new and useful improvement,
to wit, a machine for making
watch chains, brought an action,
under the 3d section of the Pa-
tent Act of 1800, c. 179. [xxvi.]
for a violation of his patent right,
against B.; and on the trial, an
agreement was proved, made by
the defendant with C., to pur-
chase of him all the watch chains,
not exceeding five gross a week,
which he might be able to manu-
facture within six months, and an
agreement on the part of C. to
devote his whole time and atten-
tion to the manufacture of the
watch chains, and not to sell or
dispose of any of them, so as to
interfere with the exclusive pri-
vilege secured to the defendant of
purchasing the whole quantity
which it might be practicable for
C. to make: And it was proved,
that the machine used by C., with
the knowledge and consent of the
defendant, in the manufacture, was
the same with that invented by
the plaintiff, and that all the
watch chains thus made by C.
were delivered to the defendant
according to the contract. Held,
that if the contract was real, and
not colourable, and if the defend-
ant had no other connexion with
C. than that which grew out of
the contract, it did not amount to
a breach by the defendant of the
plaintiff's patent right. Keplin-
358
ger v. De Young,
2. Such a contract, connected with
evidence from which the jury
might legally infer, either that the
machine which was to be employ-
ed in the manufacture of the pa-
tented article was owned wholly
or in part by the defendant, or
that it was hired to the defendant
for six months, under colour of a
sale of the articles to be manufac-
tured with it, and with intent to
invade the plaintiff's patent right,
would amount to a breach of his
right. lb.
1. In general, a payment received in
forged paper, or in any base coin,
is not good; and if there be no
negligence in the party, he may
recover back the consideration
paid for them, or sue upon his ori-
ginal demand. United States
Bank v. Bank of Georgia, 333
2. But this principle does not apply
to a payment made bona fide to
a bank, in its own notes, which
are received as cash, and after-
wards discovered to be forged.
Ib.
342
3. In case of such a payment upon
general account, an action may
be maintained by the party pay-
ing the notes, if there is a balance
due him from the bank upon their
general account, either upon an
insimul computassent, or as for
money had and received. lb.
4. Bank notes are a part of the cur-
rency of the country; they pass
as money, and are a good tender,
unless specially objected to. Ib.
1. In a plea of justification by the
Marshal, for not levying an exe-
cution, setting forth a remission,
by the Secretary of the Treasu-
ry, of the forfeiture or penalty, on
which the judgment was obtained,
it is not necessary to set forth the
statement of facts upon which the
remission was founded. United
States v. Morris, 246. 283
2. A defective declaration may be
aided by the plea, and a defective
plea by the replication. Ib. 286
3. In a declaration upon a covenant
of warranty, it is necessary to
allege substantially an eviction.
by title paramount; but no formal
terms are prescribed in which the
averment is to be made. Day v.
Chism,
449
4. Where it was averred in such a
declaration," that the said O.
had not a good and sufficient title
to the said tract of land, and by
reason thereof the said plaintiffs
were ousted and dispossessed of
the said premises by due course
of law," it was held sufficient as
a substantial averment of an evic-
tion by title paramount. Ib.
5. Where the plaintiffs declared in
covenant both as heirs and devi-
sees, without showing in particu-
lar how they were heirs, and
without setting out the will, it was
held not to be fatal on general
demurrer. Ib.
6. Such a defect may be amended
under the 32d section of the Ju-
diciary Act of 1789, c. 20. Ib.
1. Congress has power to regulate the
process in the Courts of the
Union, in all cases, independent
of State laws, and State practice.
Weyman v. Southard,
1.21
2. The 14th section of the Judiciary
Act of 1789, c. 20. authorizes the
Courts of the United States to
issue writs of execution, as well
as other writs. Ib.
22
3. The 34th section of the Judiciary
Act of 1789, c. 20. does not ap-
ply to the process and practice of
the Courts. It merely furnishes
a rule of decision, and is not in-
tended to regulate the remedy.
Ib.
24
4. The Process Act of 1792, c. 137.
[xxxvi.] is the law which regu
|