possession or seisin by a person
claiming and holding under an elder
title, it is equivalent to an eviction,
and a breach of the covenant. Ib.
61

5. Manner in which a person who acts
as agent for another must execute
a deed in order to avoid a personal
responsibility. Ib. note a, 56
6. Cases illustrative of the doctrine
that a trustee, agent, &c., who binds
himself by a personal covenant, is
liable at law for a breach of that
covenant, although he describe him-
self as covenanting as trustee. Ib.
note a,

56

7. Distinction as to public agents. Ib.
57

note a,

1. The courts of the U.S. have exclu-
sive jurisdiction of all seizures made
on land or water, for a breach of
the laws of the U. S.; and any in-
tervention of a state authority,
which, by taking the thing seized
out of the hands of the U. S. offi-
cer, might obstruct the exercise of
this jurisdiction, is illegal. Slocum
v. Mayberry et al.
1.9

9

2. In such a case the court of the U.
S., having cognizance of the seizure,
may enforce a re-delivery of the
thing, by attachment or other sum-
mary process. Ib.
3. The question under such a seizure,
whether a forfeiture has been actu,
ally incurred, belongs exclusively
to the courts of the U. S., and it de-
pends upon the final decree of such
courts, whether the seizure is to be
deemed rightful or tortious. Ib.
9, 10
4.If the seizing officer refuse to insti-
tute proceedings to ascertain the
forfeiture, the district court may,
upon application of the aggrieved
party, compel the officer to proceed

6.

to adjudication, or to abandon the
seizure. Ib.

259. 269

10
5. Under the constitution of the U. S.,
the power of naturalization is ex-
clusively in Congress. Chirac v.
Chirac,
The jurisdiction of the circuit court of
the U.S. extends to a case between
citizens of Kentucky, claiming lands
exceeding the value of five hundred
dollars, under different grants, the
one issued by the state of Kentucky,
and the other by the state of Vir-
ginia, upon warrants issued by Vir-
ginia, and locations founded there
on prior to the separation of Ken-
tucky from Virginia. It is the grant
which passes the legal title to the
land; and if the controversy is
founded upon the conflicting grants
of different states, the judicial pow-
er of the courts of the U. S. ex-
tends to the case, whatever may
have been the equitable title of the
parties prior to the grant. Colson
et al. v. Lewis,
377

D

DOMICIL.

1. It seems that where a native citizen
of the United States emigrated be-
fore a declaration of war to a neu-
tral country, there acquired a do-
micil, and afterwards returned to
the U, S. during the war, and re-
acquired his native domicil, he be-
came a redintegrated American ci-
tizen; and could not afterwards,
flagrante bello, acquire a neutral
domicil by again emigrating to his
adopted country. The Dos Her
77.98
2. Effect of domicil on national cha-
racter. Appendix, note I. 27, 28, 29
See PRACTICE, 10.

manos.

TREATY, 2,

DUTIES.

1. The act of the 23d July, 1813, im-
posing a duty according to the ca-
pacity of the still, on all stills em-
ployed in distilling spirits from do-

mestic or foreign materials, and in-
flicting a penalty of 100 dollars and
double duties, for using any still or
stills, or other implements, in dis-
tilling spirituous liquors, without
first obtaining a license as required
by the act, does not extend to the
rectification, or purification, of spi-
rits already distilled. The United
States v. Tenbroek,
248.

2. The word insolvency, mentioned in
the duty act of 1790, ch. 35. sec.
45.; and repeated in the act of 1797,
ch. 75. sec. 5. and of 1799, ch. 123.
sec. 65. means a legal insolvency,
which, whenever it occurs, the right
of preference arises to the United
States as well as in the other spe-
cified cases to which the acts of
1797 and 1799 have extended the
cases of insolvency. Thelusson et
al v. Smith,
596. 424
3. But if before the right of preference
has accrued to the United States,
the debtor has made a bona fide
Conveyance of his estate to a third
person, or has mortgaged it to se.
cure a debt, or if his property has
been seized under an execution, the
property is devested out of the
debtor, and cannot be made liable
to the United States. Ib.
4. A judgment gives to the judgment
creditor a lien on the debtor's lands,
and a preference over all subse-
quent judgment creditors. But the
law defeats the preference in fa-
vour of the United States, in the
cases specified in the act of 1799,
ch. 128. sec. 65. Ib.

426

420

ELECTION AND SATISFAC-
TION.

See CHANCERY, 1, 2, 3.

EMBARGO.

1. Where a seizure was made under
the 11th section of the Embargo
act of April, 1808, it was determin-
ed, that no power is given by law to
detain the cargo if separated from
the vessel, and that the owner had
a right to take the cargo out of the

2.

3.

4.

5.

vessel, and to dispose of it in any
way not prohibited by law; and in
case of its detention, to bring an ac-
tion of replevin therefor in the state
court. Slocum v. Mayberry, 1. 10
In seizures under the embargo laws,
the law itself is a sufficient justifi-
cation to the officer where the dis-
charge of duty is the real motive,
and not the pretext for detention;
and it is not necessary to show pro-
bable cause. Otis v. Walier, 18. 21
But the embargo act of the 25th of
April, 1808, related only to vessels
ostensibly bound to some port in
the United States, and a seizure
after the termination of the voyage
is unjustifiable; and no farther de-
tention of the cargo is lawful, than
what is necessarily dependent on
the detention of the vessel. Ib. 21
It is not indispensable to the termi-
nation of a voyage, that a vessel
should arrive at the terminus of her
original destination; but it may be
produced by stranding, stress of
weather, or any other cause indu-
cing her to enter another port with
a view to terminate her voyage
bona fide. Ib.

23

But if a vessel, not actually arriving
at her port of original destination,
excites an honest suspicion in the
mind of the collector that her de-
mand of a permit to land the cargo
was merely colourable, this is not a
termination of the voyage so as to
preclude the right of detention. Ib.

23

6. Under the embargo act of the 22d
December, 1807, the words "an
embargo shall be laid," not only im-
posed upon the public officers the
duty of preventing the departure of
registered or sea-letter vessels on a
foreign voyage, but, consequently,
rendered them liable to forfeiture
under the supplementary act of the
9th January, 1808. The William
King,
148. 153
7. In such case, if the vessel be actu-
ally and bona fide carried by force
to a foreign port, she is not liable to
forfeiture. Ib.

153

8. But if the capture, under which it

is alleged the vessel is compelled
to go to a foreign port, be fictitious

1. Where a witness, a clerk to the
plaintiff, swore that the several ar-
ticles of merchandize contained in
the account annexed to his depo-
sition, were sold to the defendant
by the plaintiff, and were charged
in the plaintiff's day-book by the
deponent and another person, (since
dead,) and that the deponent deli-
vered the goods, and farther swore,
that he had referred to the original
entries in the day-book; held, that
this was sufficient evidence to prove
the sale and delivery of the goods.
M'Coul v. Lekamp's Adm.

111. 116
2. Law of France as to evidence of
tradesmen's books. Ib. note a, 117
3. English cases on the same subject.
Ib. note a,

118

4. Rules of practice in the United
States. Ib. note a,

118
5. Interest in the subject matter of
the suit,a fatal objection to a witness
by the civil law. Laidlaw et al v.
Organ, note e,

192
6. The answer of one defendant to a
bill in chancery cannot be used as
evidence against his co-defendant;
and the answer of an agent is not
evidence against bis principal, nor
are his admissions in pais, unless
they are a part of the res gesta.
Leeds v. The Marine Ins. Comp.
380. 383

See PRIZE.

I

INDICTMENT.

1. Under the act of the 6th July, 1812,
"to prohibit American vessels from
proceeding to or trading with the
enemies of the United States, and
for other purposes," living fat ox-
en, &c. are articles of provision
and munitions of war, within the
true intent and meaning of the act.

1. Where a seizure for a breach of the
laws of the United States is finally
adjudged wrongful, and without
probable cause, by their courts, the
party may proceed, at his election,
by a suit at common law, or in the
instance court of admiralty, for da-
mages for the illegal act. But the
common law remedy in such case
must be sought for in the state
courts; the courts of the United
States having no jurisdiction to de-
. cide on the conduct of their officers,
in the execution of their laws, in
suits at common law, until the case
shall have passed through the state
courts. Slocum v. Mayberry et al.

2.

10

The jurisdiction of the circuit court
having once vested between citi-
zens of different states, cannot be
devested by a change of domicil of
one of the parties, and his removal
into the same state with the ad-
verse party, pendente lite. Mor-
gan's heirs v. Morgan et al.

290.297
3. This court has not jurisdiction to
issue a writ of mandamus to the re-
gister of a land-office of the United
States, commanding him to enter
the application of a party for cer-
tain tracts of land, according to the
7th section of the act of the 10th of
May, 1800,"providing for the sale
of the lands of the United States
northwest of the Ohio, and above
the mouth of Kentucky river,"
which mandamus had been refused
by the supreme court of the state of
Ohio, upon a submission by the re-
gister to the jurisdiction of that
court, being the highest court of
law or equity in that state. MClu-
ny v. Silliman,
369
4. Cases where the courts of the Uni-

1. It is essential to the validity of an
entry, that the land intended to be
appropriated should be so described
as to give notice of the appropria-
tion to subsequent locators. John-
son v. Pannel's heirs. 206. 208
2. In taking the distance from one point
to another on a large river, the mea-
surement is to be with its meanders,
and not in a direct line. Ib. 211
3. In ascertaining a place to be found

by its distance from another, the
vague words "about" or 66 nearly,"
and the like, are to be rejected, if
there are no other words rendering
it necessary to retain them; and the
distance is to be taken positively.
Ib.
211
4. Reasonable certainty is required,
both in the descriptive call and the
locative call of an entry: if the de-
scriptive call will not inform a subse-
quent locator in what neighbour-
hood he is to search for the land,
the entry is defective, unless the
particular object is one of sufficient
notoriety. If, after having reached
the neighbourhood, the locative ob-
ject cannot be found within the li-
mits of the descriptive calls, the ea-
try is also defective. A single call
may, at the same time, be of such a
nature, (as, for example, a spring of
general notoriety.) as to constitute
within itself a call of description and
of location; but if this call be ac-
companied with another, such as a
marked tree at the spring, it seems

to be required that both should be
satisfied. ть.
211
5. The call for an unmarked tree of a
kind which is common in the neigh-
bourhood of a place sufficiently de-
scribed by the other parts of the en-
try to be fixed with certainty may
be considered as an immaterial call.
Ib.
212
6. Therefore, where the entry was in
the following words, "D. P. enters
2,000 acres on a treasury warrant on
the Ohio, about twelve miles below
the mouth of Licking, beginning at
a hiccory and sugar tree on the river
bank, running up the river from
thence 1,060 poles, thence at right
angles to the same, and back for
quantity," it was held that the call
for a sugar tree might be declared
immaterial, and the location be sus-
tained on the other calls. Ib. 219
7. The entry in this case was decreed
to be surveyed, beginning 12 miles
below the mouth of Licking on the
bank of the Ohio, and running up
that river 1,060 poles; which line
was to form the base of a rectangu-
lar parallelogram, to include 2,000
acres of land. Ib.

ib.
8. An error in description is not fatal
in an entry if it does not mislead a
subsequent locator. The following
entry, "H. M. enters 1637 acres of
land on a treasury warrant, No.
6,168, adjoining Chapman Aston on
the west side, and Israel Christian
on the north, beginning at Chris-
tian's north-west corner, running
thence west 200 poles; thence north
parallel with Aston's line until an
east course to Aston's line will in-
clude the quantity," was held valid,
although no such entry as that re-
ferred to could be found in the name
of Aston, but the particular descrip-
tion clearly pointed out an entry in
the name of Chapman Austin, as
the one intended, and this, together
with Christian's entry, satisfied the
calls of H. M.'s entry. Shipp v. Mil-
ler's heirs.
9. It is a general rule that when all

316

the calls of an entry cannot be com-
plied with, because some are vague
or repugnant, the latter may be re-
jected or controlled by other mate-
rial calls, which are consistent and

certain. Course and distance yield
to known, visible, and definite ob-
jects; but they do not yield, unless
to calls more material and equally
certain. Ib.
321
10. It is a settled rule that where no other
figure is called for in an entry, it is
to be surveyed in a square, coinci-
dent with the cardinal points, and
large enough to contain the given
quantity, and that the point of be-
ginning is deemed to be the centre
of the base line of such square. Ib.
323
11. The act of Kentucky of 1797, taken
in connexion with preceding acts,
declaring that entries for land shall
become void, if not surveyed before
the first day of October, 1798, with
a proviso allowing to infants and
femes covert three years after their
several disabilities are removed to
complete surveys on their entries;
held, that if any one or more of the
joint owners be under the disability
of infancy or coverture, it brings the
entry within the saving of the provi-
so as to all the other owners. Dis-
tinction between this statute and a
statute of limitations of personal ac-
tions. Ib.
323

2. A call for a spring branch generally,
or for a spring branch to include a
marked tree at the head of such
spring, is not a sufficiently specific
locative call; and where farther cer-
tainty is attempted to be given by a
call for course and distance, and the
course is not exact, and the distance
called for is a mile and a half from
the place where the object is to be
found, the entry is void for uncertain-
ty. Ib.
326
13. By the act of incorporation of the
Union Bank of Georgetown, ch. 86.
sec. 11. the shares of any individual
stockholder are transferrable only on
the books of the bank, according to
the rules (conformably to law) esta-
blished by the president and direc-
tors; and all debts due and payable
to the bank, by a stockholder, must
be satisfied before a transfer shall be
made. unless the president and direc-
tors should direct to the contrary.
Held, that no person could acquire
a legal title to any shares, except

14.

under a regular transfer, according
to the rules of the bank; and if any
person takes an equitable assign-
ment, it must be subject to the rights
of the bank, under the act of incor-
poration of which he is bound to take
notice. The Union Bank v. Laird,
390

A creditor may lawfully take and
hold several securitics for the same
debt, and cannot be compelled
to yield up either until the debt
is paid; therefore, the bank has
a right to take security from one
of the parties to a bill or note dis-
counted by it, and also to hold the
shares of another party as security
for the same. Ib.
394

1. Where the owner of certain slaves,
and also part owner of a vessel, bir-
ed the slaves to the master of the
vessel, to proceed as mariners on
board, on a voyage, at the usual wa-
ges, and without any special contract
of hiring; held, that the master, ha-
ving acted with good faith, was not
responsible for the escape of the
slaves in a foreign port, which was
one of the contingent termini of the
voyage; and, consequently, within
the hazards to which the owner knew
his property might be exposed; al-
though it was doubtful whether the
master had strictly pursued his orders
in going to such port. Beverly v.
Brooke.
100
Duties of the master to the ship-own-
er, and extent of his responsibility.
Ib. note b.
Effect of the illegal acts of the master
upon the owner's property, and as
the agent of the cargo, Appendix,

2.

3.

note 1.

109

37