2. The declaration alleged an authority to draw, but not in writing, for 100,000 francs; the proof was a letter authori- zing blank francs to be drawn for: Held, that this was no variance. ib. 3. The owner of the sugars be- coming insolvent, wrote the plaintiffs, informing them, that the vessel which he had in- tended should take the sugars would not do so, and that they were at liberty to make any arrangements with the defend- ant for the interest of all con- cerned: Held, that this was an authority under which the plaintiffs could nominate a ves- sel, and that the defendant was bound to ship the sugars in such vessel, if he did not choose to appoint another. ib. 4. The sugars were to be ship- ped at New-York to Mar- seilles Held, that the mea- sure of damages, as against the defendant, was the value of the sugars in New-York at the time of his refusal to ship them according to his con- tract.
1. Covenant will not lie upon
words in an instrument insert- ed by way of condition or de- feasance by the performance of some collateral act. United States v. Brown, 422
2. So upon a penal bond condi- tioned that one should account for public monies, property, &c.: Held, that covenant would not lie upon the coudi- tion.
ib. 3. But covenant will lie upon the bond itself; but the breach assigned must be the non-pay- ment of the penalty. ib. Where covenant was brought upon the bond itself, and the breach assigned was the non- performance of the condition, it was held bad on demurrer.
1. Where a bond with a penalty is given for the performance of covenants, although damages may have been sustained to a greater amount, yet the reco- very must be limited to the penalty, especially in a case of sureties. Contrariety of English authorities on this point. Bank of U. S. v. Ma- gill, 661 2. It seems, that this is not the rule where bonds are condi-
actual cost of the raw material, and the price or value of the labour employed in its manu- facture, adding the expense of transportation to the sea-port, whence it was shipped. This is the cost at the place of ex- portation, within the meaning of the law. 95 Bales of Paper v. United States, 2. An act laying duties on goods imported, "from and after the passage of the act," takes ef- fect the beginning of the day on which it is passed, and not from the time of its being signed by the President. ib. 3. But, in case of a prosecution for a forfeiture ? Quere. Unit- ed States v. Williams,
Vide ACTION, 1. FORFEITURES, 10, 11. 14, 15. 17, 18, 19. 24-40.
1. The alienage of the plaintiffs in ejectment cannot be set up to defeat a recovery where their ancestor held the lands at the time of the treaty of 1794. The circumstance of the special verdict's not find- ing the fact that he held them at that time not noticed. Denn. ex. dem. Fisher v. Harnden, 55 2. In ejectment, possession ac- companied with a claim of ownership in fee, is prima fa- cie evidence of such an estate. In such case it is not the pos- session alone, but that it is ac- companied with the claim of the fee which gives this effect, by construction of law, to the acts of the party.
Jackson v. Porter. 3. But such effect is limited to
the claim actually made, and a claim of a different kind can- not afterwards be set up for the purpose of aiding the first.
ib. 4. As where one claimed title by an Indian deed, confirmed by an agent of the British go- vernment, who could not law- fully have confirmed it; it was held, that no other kind of con- firmation, and no other deed could be set up to help the possession; and that any pre- sumption of the existence of a deed was to be confined to such an one as was originally asserted. ib.' 5. Whether a deed is to be pre- sumed from a long possession, is a mixed question of law and fact, and in most, if not all cases, to be submitted to the jury, under the advice of the Court. The existence of the deed is a fact for the jury, but its legal effect and operation a question of law for the Court. ib.
6. The seisin of lands belonging to the Indian tribes is in the sovereign, and the Indians are mere occupants. A purchaser from them can acquire only the Indian title, and they may resume it, and make a differ- ent disposition of it. ib. 7. Where proclamation had been made by the governor of the colony of New-York, under orders from the king, that no purchases of land should be made of the Indians, it was held, that a purchaser could
not acquire even the Indian title of occupancy. ib. 8. An occupant under an Indian grant, the Indians having after- wards resumed the title, and granted it to the crown, was held to be a tenant at will of the king, whose occupancy no length of time could ripen into a title by adverse possession.ib. 9. Where one enters into land
having title, his seisin is not bounded by his actual posses- sion, but is co-extensive with his title. But where he enters without title, his seisin is con- fined to his possession by metes and bounds. ib. 10. The circumstances that one took possession of unoccupied land, as contractor, to trans- port for the government to and from a fort on the frontiers, and that his claim compre- hended the fort itself, as well as the land around it, and that his improvements were neces- sary in the performance of his contract, considered evidence that he did not hold in hostili- ty, but in subordination to the rights of the crown. ib. 11. How far a party who gains possession by force, can, in an action of ejectment, pro- tect himself by setting up a ti- tle to the land? Quere. ib. 12. Under the second article of the treaty with Great Britain of 1794, the precincts and juris- diction of a post are not to be considered as extending three miles in every direction, by analogy to the jurisdiction of a country over that distance of the sea surrounding its coasts,
but they must be made out by proof. ib. 13. This clause in the second article of the treaty, providing that settlers within such pre- cincts shall be protected in the enjoyment of their pro- perty, as well as the 9th arti- cle, were intended to protect legal and equitable interests in land, and not trespassers and intruders without right. ib. 14. Where the quantity of a tract of land is given as well as the metes and bounds, the lat- ter will control the location, although they contain less than the given quantity, if they can be ascertained with certainty. Jackson v. Sprague. 494 15. And this rule applies in all cases, whether the lands have been surveyed or not. ib. 16. As where land was granted to be run upon a given base, which had never been sur- veyed, but could be ascer- tained from a known point, and parallel lines were to be run from each extremity of the base, until a certain quan- tity was obtained, but a portion of the base had been cut off by a prior grant so as to narrow the extent between the paral- lel lines; it was held, that the lines could not be continued, in order to make up the defi- ciency out of the lands of the grantor, beyond the limits which they would have reach- ed, to make up the quantity, if the base had remained un- diminished. ib. 17. Where the different parts of a description of the metes and
1. If it appear on the face of a deposition taken under the act of Congress, that the officer taking the same was authoriz- ed by the act, it is sufficient in the first instance, without any proof that he was such officer. Ruggles v. Bucknor. 358 Objections to the competency of the witness should be made at the time of taking a deposi- tion under the 30th section of the judiciary act, if the party attend, and the objections are known to him, in order that they may be removed. Other- wise, he will be presumed to have intended to waive them. U. S. v. One Case Hair Pencils.
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