vested in Congress, and no part
of it can be exercised by a State.
Id.
6. State inspection laws, health laws,
and laws for regulating the inter-
nal commerce of a State, and
those which respect turppike
roads, ferries, &c. are not with-
in the power granted to Congress.
Id.
7. The laws of New-York, granting te
R. R. L. and R. F. the exclusive
right of navigating the waters of
that State with steam boats, are
in collision with the acts of Con-
gress regulating the coasting trade,
which being made in pursuance
of the constitution, are supreme,
and the State laws must yield to
that supremacy, even though en-
acted in pursuance of powers ac-
knowledged to remain in the
States. Id.
210
8. A license under the acts of Con-
gress, for regulating the coasting
trade, gives a permission to carry
on that trade, and is not merely
intended to confer the national
character. Id.
9. The power of regulating commerce
extends to navigation carried on
by vessels exclusively employed
in transporting passengers. Id.
215, 216
treaties made, or which shall be
made, under their authority."
Osborn v. U. S. Bank,
The Circuit Courts of the United
States have jurisdiction of a bill
brought by the Bank of the United
States, for the purpose of protect-
ing the Bank in the exercise of its
franchises, which are threatened to
be invaded, under the unconstitu-
tional laws of a State; and, as
the State itself cannot, according
to the 11th amendment of the con-
stitution, be made a party defend-
ant to the suit, it may be main-
tained against the officers and
agents of the State, who are in-
trusted with the execution of such
laws. Id.
13. A State cannot tax the Bank of
the United States; and any at-
tempt, on the part of its agents
and officers, to enforce the col-
lection of such tax against the
property of the Ba k, may be
restrained by injunction from the
Circuit Court. Id.
212. 214 CONSTRUCTION OF STATUTE.
10. The power of regulating com-
merce, extends to vessels propel-
led by steam or fire, as well as to
those navigated by the instrumen-
tality of wind and sails. Id. 219
11. The act of incorporation of the
Bank of the United States, which
gives the Circuit Courts of the
United States jurisdiction of suits
by and against the Bank, is war-
ranted by the 3d article of the
constitution, which declares, that
"the judicial power shall extend
to all cases, in law and equity,
arising under this constitution,
the laws of the United States, and
VOL. IX.
1. The French Tonnage Duty Act of
the 15th of May, 1820, c. 125.
inflicts no forfeiture of the vessel,
for non-payment of the tonnage
duty. The duty is collectable in
the same manner as by the Col-
lection Act of 1799, c. 128. The
Appollon,
362. 367
The 29th sec. of the Collection Act
of 1799, c. 128, does not extend
to the case of a vessel arriving
from a foreign port, and passing
through the conterminous waters
of a river, which forms the boun
dary between the United States
and the territory of a foreign
State for the purpose of proceed-
ing to such territory. Id. 369
3. Under the SLAVE TRADE AAT of
1794, c. 187. [xi.] s. 1. an in-
formation, which describes, in one
count, the two distinct acts of
preparing a vessel and of caus-
ing her to suil, pursuing the
words of the law, is sufficient.
The Emily and the Caroline,
379. 381
4. Under the above act, it is not ne-
cessary, in order to incur the for-
feiture, that the vessel should be
completely fitted and ready for
sea. As soon as the preparations
have proceeded so far, as clearly
to manifest the intention, the right
of seizure attaches. ld. 388
5. The prohibitions in the Slave Trade
Acts of the 10th of May, 1800, c.
205. [li.] and of. the 20th of
April, 1818, extend as well to the
carrying of slaves on freight, as to
cases where the persons trans-
ported are the property of citizens
of the United States; and to the
carrying of them from one port to
another, of the same foreign em-
pire, as well as from one foreign
country to another. The Merino
and others,
391. 403
6. Under the 4th sec. of the act of the
10th of May, 1800, c. 205. [li.]
the owner of the slaves transport-
ed contrary to the provisions of
that act, cannot claim the same in
a Court of the United States, al-
though they may be held in ser-
vitude, according to the laws of
his own country. But if, at the
time of capture by a commission-
ed vessel, the offending ship was
in possession of a non-commis-
sioned captor, who had made a
seizure for the same offence, the
owner of the slaves may claim:
the section only applying to per-
sons interested in the enterprise
or voyage in which the ship was
employed at the time of such cap-
ture. Id.
407
7. Under the 16th sec. of the Ship
Registry Act of the 31st of De-
cember, 1792, c. 1. a transfer of
a registered vessel of the United
States, to a foreign subject, in a
foreign port, for the purpose of
evading the revenue laws of the
foreign country, with an under-
stauding that it is to be afterwards
reconveyed to the former owner,
works a forfeiture, unless the
transfer is made known in the
manner prescribed by the 7th sec.
of the act. The Margaret, 421
8. The statute does not require a be-
neficial or bona fide sale; but a
transmutation of ownership, " by
way of trust, confidence, or other-
wise," is sufficient. Id. 424.
9. In a libel of information under the
67th sec. of the Collection Act of
1799, c. 128. against goods, on
account of their differing from the
contents of the entry, it is not ne-
cessary that it it should allege an
intention of defrauding the reve-
nue. 200 Chests of Tea, 430. 436
The term "bohea tea," is used in
the duty act in its known commer-
cial sense; and the bohea of com-
merce is not usually a distinct and
simple substance, but is a com-
pound, made up in China, of vari-
ous kinds of the lowest priced
black teas. But, by the Duty
Acts, it is liable to the same spe
cific duty, without regard to the
difference of quality and price. Id
436
Under the 2d and 4th sections of
the act of the Sd of March, 1797,
c. 368. a certified transcript from
the books of the Treasury is evi-
dence against the defendant; and
no claim for any credit can be ad-
mitted at the trial, which has not
been presented to, and disallowed
by the accounting officer of the
Treasury, (unless in the cases ex-
cepted by the act,) although no
proceedings have been had against
the debtor, under the act of the
3d of March, 1795, c. 289. by
notification from the Treasury
Department, requiring him to
render to the Auditor of the Trea-
sury his accounts and vouchers
for settlement. Walton v. Uni-
ted States,
351
12. Quare, Whether the act of the 3d
of March, 1795, c. 289. is not
virtually repealed by the act of
the 3d of March, 1797, c. 368 ?
13. The statute of 11 and 12 Wm.
III. c. 6. which is in force in Ma-
ryland, removes the common law
disability of claimiug title through
an alien ancestor, but does not
apply to a living allen ancestor,
so as to create a title by heirship,
where none would exist by the
common law, if the ancestor were
a natural born subject or citizen.
McCreery v. Somerville, 354
14. Thus, where A. died seised of
lands in Maryland, leaving no
heirs, except B., a brother, who
was an alien, and had never been
naturalized as a citizen of the Uni-
ted States, and three nieces, the
daughters of the said B., who
were native citizens of the
United States: it was held, that
they could not claim title by inhe-
ritance, through B., their father,
he being an alien, and still living.
Id.
See ADMIRALTY, 24, 25, 26, 27, 28,
29, 30, 31. 37, 38, 39.
BILLS OF EXCHANGE AND PROMIS
SORY NOTES.
1. Although the Church-Wardens of
a parish are not capable of holding
lands, and a deed to them and
their successors in office, for ever,
cannot operate by way of grant ;
yet, where it contains a covenant
of general warranty, binding the
grantors and their heirs for ever,
it may operate by way of estop-
pel, to confirm to the church and
its privies the perpetual and bene-
ficial estate in the land. Mason
v. Muncaster,
445.455
1. R. B. being seised of lands in Ma-
ryland, made three instruments
of writing, each purporting to be
his will. The first, dated in 1789,
gave his whole estate to his ne-
phew, J. T. M., after certain pe-
cuniary legacies to his other ne-
phews and nieces. In the second
will, dated in 1800, the testator
gave his whole real estate to J. T.
M., during his life; and after his
death, to his eldest son, A., in
tail, on condition of his changiug
his name to A. Barnes, with re-
mainder to the heirs of his ne-
phew, J. T. M., lawfully begotten,
for ever, on their changing their
surnames to Barnes. The third
will, which was executed after the
others, and probably in 1803, af-
ter some small bequests, proceed-
ed thus: "I give the whole of my
property, after complying with
that I have mentioned, to the male
heirs of my nephew, J. T. M.,
lawfully begotten, for ever, agree-
ably to the law of England, which
was the law of our State before the
revolution, that is, the oldest male
heir to take all, on the following
terms: that the nume of the one
that may have the right; at the
age of twenty-one, with his con-
sent, be changed to A. Barnes, by
an act of public authority of the
State, without any name added,
together with his taking an oath,
before he has possession, before a
magistrate of St. Mary's county,
and have it recorded in the office
of the Clerk of the county, that he
will not make any change, during
his life, in this my will, relative to
my real property. And on his re-
fusing to comply with the above
mentioned terms, to the next male
heir, on the above mentioned
terms; and so on, to all the male
neirs of my nephew, J. T. M., as
may be, on the same terms; and
all of them refusing to comply, in
a reasonable time after they have
arrived at the age of twenty-one,
say, not exceeding twelve months,
if in that time it can be done, so
that no act of intention to defeat
my wili shall be allowed of; and
on their refusing to comply with
the terms above mentioned, if any
such person may be, then to the
son of my late nephew, J. T. M.,
named A. T. M., on the above
mentioned terms; and on his .c-
fusal, to his brother, J. T. M.;
and on his refusing to comply with
then appoints J. T. M. his sole
executor, with a salary of 1600
dollars per annum, for his life,
and adds," and my will is, that
he shall keep the whole of my
property in his possession, du-
ring his life." He then empow-
ers his executor to manage the
estate at his discretion, to employ
agents, and to pay them such sa-
laries as he shall think proper; to
repair the houses, and build
others, as he may think necessa-
ry; to reside his plantations,
and to use their produce for his
support; and adds, " after which
to be the property of the person
that may have a right to it, as
above mentioned." Held, that
the conditions annexed to the
estate, devised to the oldest male
heir of J. T. M., were subsequent
and not precedent, and that, con-
sequently, the contingency on
which the devise was to take ef
fect, was not too remote, the estate
vesting on the death of J. T. M.;
to be devested, on the non-per-
formance of the condition. Tay-
lor v. Mason,
2. Quære, Whether J. T. M. took
an estate tail? Id.
853
Quare, Whether the last will re-
voked those which preceded it?
Id.
the above mentioned terms, to the See ADMIRALTY, 2, 3. 34, 35, 36.
heirs male of my nephew, A. B.
T. M., lawfully begotten, on the
above mentioned terms; and on
their refusal, to the male heirs of
my niece, Mrs. C., lawfully be-
gotten, on their complying with
the above mentioned terms; and
on their refusal, to the daughter of
my nephew, J. T. M., named
Mary, so on to any daughter he
may have or has." The testator
1. Secondary evidence of the contents
of written instruments is not ad-
missible, where the originals are
within the control or custody of
the party. Sebree v. Dorr,
558. 563
2. Secondary evidence of the con-
tents of written instruments is ad-
missible, wherever'it appears that
the original is destroyed, or lost,
by accident, without any fault of
the party. Renner v. Bank of
Columbia,
4 581.596
3. In the case of a lost note, it is not
necessary that its contents should
be proved by a notarial copy.
All that is required is, that it
should be the best evidence the
party has it in his power to pro-
duce. Id.
597
4. The English practice of requiring
a special count in the declaration,
as upon a lost note, in order to
let in secondary evidence of its
contents, has not been adopted in
the United States. Id.
5. If a party intend to use a written
instrument in evidence, he must
produce the original, if in his pos-
session. But if it is in the pos-
session of the other party, who re-
fuses to produce it, after notice, or
if the original is lost or destroyed,
secondary evidence (being the
best which the nature of the case.
allows) will be admitted. Riggs
v. Tayloe,
6. The party, in such case, may read
a counterpart; or, if there is no
counterpart, an examined copy;
or, if no such copy, may give pa-
rol evidence of the contents. Id.
7: Where a writing has been volun-
tarily destroyed, for fraudulent
purposes, or to create an excuse
for its non-production, secondary
evidence of its contents is not ad-
missible. But where the destruc-
tion or loss (although voluntary)
happens through mistake or acci
dent, such evidence will be ad-
mitted. Id.
486
8. In an action against the receiver,
not describing him in his official
capacity, evidence may be given
of moneys received in his official
capacity; and, under a count for
money had and received, evi-
dence may be given of public
stock received by him, where
such stock is, by law, made recei-
vable, at par, in payment for lands
sold by the United States. Wal-
ton v. United States,
651
1. A covenant, under seal, to come
to a settlement within a limited
time, and to pay the balance which
might be found due, is merely col-
lateral, and cannot be pleaded as
an extinguishment of a simple
contract debt, the period within
which the settlement was to be
made, having elapsed before the
commencement of the suit, and
the plea not averring that any
such settlement had been made.
Baits v. Peters,
556
2. The official bond given by a re-
ceiver of public moneys, does not
extinguish the simple contract
debt arising from balance of ac-
count due from him to the United
States. An action of assumpsit
for the balance of account, and an
action of debt upon the bond
against the principal and sureties,
may be maintained at the same
tinie. Walton v. United States,
631
1. The District Court of the district
where the seizure was made, and
not where the offence was com-
mitted, has jurisdiction of pro-
ceedings in rem, for an alleged
forfeiture. The Merino et al.
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