author: Marshall, Chief Justice. Washington, Justice.

text:
    *APRIL TERM, 1805.
    Present — Washington, Justice, and Peters, District Judge.
    Huidekoper’s Lessee v. Douglass.

      Wa/rra/ntee. —Settlement.

    A grantee by warrant, of lands lying north and west of the Ohio, &c., who was prevented from making such settlement as the law requires, for the space of two years from the- date of his warrant, but who, during that period, persisted in his endeavors to make the settlement, although he afterwards made no such attempt, is entitled to hold his land in fee-simple: it is not every slight or temporary danger, which will excuse him, but such as a prudent man ought to regard.

    This was an ejectment brought for a tract of land, lying north and west of the rivers Ohio and Allegheny and Conewango creek. The lessor of the plaintiff made title under the Holland Company, to whom a patent was issued, upon a warrant and survey. The defendant claimed as an actual settler, under the act of the 3d of April 1792. A great many ejectments were depending upon the same facts and principles ;  and on the trial of another ejectment, at a former term, Washington, Justice, had delivered a charge to the jury, coinciding, generally, with the construction given by the supreme court of Pennsylvania, to the act of April 1792, from which Judge Peters dissented. It was, therefore, upon the recommendation of the court, determined to submit the questions, upon which the opinions of the judges were opposed, to the supreme court of the United States, under the provision made, in case of such a disagreement, by the act of the 29th of April 1802. (2 U. S. Stat. 159, §) 6. The questions were, accordingly, stated, at the last October term, in the following form :
    “ 1st. Whether, under the act of the legislature of Pennsylvania, passed on the 3d day of April 1792, entitled ‘ an act for the sale of the vacant lands within this commonwealth,’ the grantee by warrant of a tract of land lying ‘ north and *3931 west ^le *rivers Ohio and Allegheny and Conewango creek,’ who, J by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the 10th day of April 1793, the date of the said warrant, until the 1st day of January 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee.
    “ 2d. Whether a warrant for a tract of land, lying north and west of the Ohio and Allegheny and Conewango creek, granted in the year 1793, under and by virtue of the act of the legislature of Pennsylvania, entitled £ An act for the sale of vacant lands, within this commonwealth ’ to a person, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the date of the said warrant, until the first day of January 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, vests any, and if any, what title in or to the said land, unless the said grantee shall, after the said prevention ceases, commence, and within the space of two years thereafter, clear, fence and cultivate, at least two acres contained in his said survey, erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon, for the space of five years next following his first settling the same, the said grantee being yet in full life.
    “ 3d. Whether a grantee in such warrant as aforesaid, who has failed to make such settlement as the enacting clause of the said ninth section requires, and who is not within the benefit of the proviso, has thereby forfeited his right and title to the said land, until the commonwealth has taken advantage of the said forfeiture, so as to prevent the said grantee from recovering the possession of said land in ejectment, against a person who, at any time after two years from the time the prevention ceased, or at any subsequent period, has settled and improved the said land and has ever since been in possession of the same.”
    The questions were argued in the supreme court, at February term 1805, by E. Tilghman, Ingersoll, Lewis and Dallas, for the plaintiff; and by McKean (attorney-general of Pennsylvania) and W. Tilghman, for the defendant.

       s. c. 1 W. C. C. 253.

       For a general view of this important controversy, see Commonwealth v. Coxe, ante, p. 170; Attorney General v. The Grantees, ante, p. 237; and Balfour’s Lessee v. Meade, ante, p. 363.

       See note to Commonwealth v. Coxe, ante, p. 237.

       For a report of the case, before the supreme court, see 3 Cr, 1.

   The opinion of the court was delivered by the Chief Justice, in the following manner.

Marshall, Chief Justice.

— The questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by *the legislature of that state entitled “ An Act for the sale of the vacant lands within this com monwealth.”

The ninth section of that act, on which the case principally depends, is in these words :' “ And be it further enacted by the authority aforesaid, that no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, xlnless the grantee has, prior to the date of such warrant, made or caused to be made, or shall, within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing or causing a family to reside thereon, for the space of five years next following his first settling the same, if he or she shall so long live ; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so as often as default shall be made, for the time and in the manner aforesaid ; which new grants shall be under and subject to all and every the regulations contained in this act. Provided always, nevertheless, that if any such actual settler, or any grantee in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement, as aforesaid, then, in .eilher case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.”

The questions to be considered, relate particularly to the proviso of this section ; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein, shall vest in him.

Two classes of purchasers are contemplated. The one has already performed every condition of the sale, and is about to pay the consideration-money ; the other pays the consideration-money in the first instance, and is, afterwards to perform the conditions. They are both described in the same sentence, and from each, an actual settlement is required, as indispensable to the completion of the title. In describing this actual settlement, it is declared, that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, “ by clearing, fencing and cultivating at least *two acres contained in one survey, erecting J thereon a messuage for the habitation of man, and residing or cause ing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live.”

The manifest impossibility of completing a residence of five years within the space of two years, would lead to an opinion, that the part of the description relative to residence, applied to those only who had performed the condition, before the payment of the purchase-money, and not to those who were to perform it afterwards. But there are subsequent parts of the act, which will not admit of this construction, and consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.

The law requiring two repugnant and incompatible things, is incapable of receiying a literal construction, and must sustain some change of language, to be rendered intelligible. This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is, by changing the participle, into the future tense of the verb, and instead of “ and residing or causing a family to reside thereon,” reading, and shall reside, &c. The effect of this correction of language, will be to destroy the repugnancy which exists in tne act, as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that, in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition ; the settlement to be made within the space of two years from the date of the warrant, and the residence in five years from the commencement of the settlement.

This construction is the more necessary, because the very words “ such actual settlement and residence,” which prove that residence is required from the warrantee, prove also, that settlement and residence are, in contemplation of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a settlement, no more requires a residence of five than a residence of five hundred years: and of consequence, it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement.

The meaning of the terms, settlement and residence, being understood, the court will proceed to consider the proviso. That part of the act treats of an actual settler, under which term is intended as well the person r*3gg who makes his settlement the foundation of his claim to a warrant, as L a warrantee, who had made an' actual settlement, in performance of the conditions annexed to his purchase, and if any grantee in any such original or succeeding warrant,” who must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced are brought together in the same sentence, and terms are used appropriated to the situation of each, but not applicable to both. Thus the idea of an actual settler,” prevented from making an actual settlement,” and, after “ being driven therefrom,” “ persisting in his endeavors” to make it, would be absurd. To apply to each class of purchasers all parts of the proviso, would involve a contradiction in terms. Under such circumstances, the plain and natural mode of construing the act, is to apply the provisions, distributively, to the description of persons to whom they are adapted, reddenda singula singulis. The proviso, then, would read thus, “ Provided always, nevertheless, that if any such actual settler, shall be driven from his settlement, by force of arms of the enemies of the United States ; or any grantee, in any such original or succeeding warrant, shall by force of arms of the enemies of the United States, be prevented from making such actual settlement, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” The two cases are the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavors to make one.

It is perfectly clear, that in each case, the proviso substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence, to continue five years, from the commencement of the settlement, both of which were required in the enacting clause. What is that something ? The proviso answers, that in case of “ an actúa1 settler,” it is his being “ driven from his settlement, by force of arms of the enemies of the United States,” and in case of his being a grantee of a warrant, not having settled, it is “ persisting in his endeavors to make such actual settlement.” In neither case, is residence, or persisting in his endeavors at residence, required. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence they say, that the person who comes within the proviso, shall hold the land “ as if the actual settlement had been made and continued.”

It is contended on the part of the defendant, that as the time during *3971 persistence shall continue, is not prescribed, the person *claiming the land, must persist, until he shall have effected both his settlement and residence, as required by the enacting clause of the act: that is, that the proviso dispenses with the time, and only with the time, during which the condition is to be performed. But the words are not only inapt for the expression of such an intent; they absolutely contradict it.

If the proviso be read, so as to be intelligible, it requires nothing from the actual settler who has been driven from his settlement; he is not to persist in his endeavors at residence, or in other words, to continue his settlement, but is to hold the land. From the warrantee, who has been jirevented from making a settlement, no endeavox-s at residence are required : he is to “ persist in his endoavox-s,” not to make and to continue such actual settlement, but “ to make such actual settlement as afoi-esaid.” And if he does persist in those endeavors, he is to hold the land, “ as if the actual settlement had been made and continued.” The construction of the defendant would make the legislature say, in substance, that if the warrantee shall persist in endeavoring to accomplish a particular object, until he does accomplish it, he should hold the land, as if he had accomplished it. But independent of the impi'obability that the intention to dispense only with the time, in which the condition was to be pex'formed, would be expressed in the language which has been noticed, there ax’e tex-ms used, which seem to restrict the time dxxring which a persistence in endeavors is required. The warrantee is to persist in his endeavox-s “ to make -such actual settlement as aforesaid :” now, “ such actual settlement as afox-esaid ” is an actual settlement, within two years from the date of the warrant, and as it could only be made within two years, a persistence in endeavoring to make it, could only continue for that time.

If, after being px-evented fx-om making an actual settlement, and persisting in endeavors, those endeavox-s should be successful, within the two years ; after which the person should be driven off, it is asked, what would be his situation ? The answer is a plain one. By persisting, he has become an actual settler ; and the part of the proviso which applies to actual settlers px-otects him.

If, after the two years, he should be driven off, he is still protected. The application of external violence dispenses with residence. The court feels itself bound to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead of a performance of the conditions requix-ed by the enacting clause ; and of that substitute residence forms no pax-t.

In a great variety of forms, and with great stx-ength, it has been ax-gued, that the settlement of the country was the great object' of the act; and that the construction of the plaintiff would defeat that object. *That the exclusive object of an act to give lands to settlers, would be the settlement of the country, will be admitted; but that an act to sell lands to settlers, must have for its exclusive object the settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far the two objects might be consulted, or how far the one yielded to the other, is only to be inferred from the words in which the legislative intention has been expressed. How far the legislature may have supposed the peopling of the district in question to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words dispensing with residence, it is not for the court to say, they could not in tend it, unless there were concomitant expressions, which should explain those words, in a manner different from their ordinary import.

There are other considerations in favor of the construction to which the court is inclined. This is a contract, and although a state is a party, it ought to be construed according to those well-established principles which regulate contracts generally. The state is in the situation of a person, who holds forth to the world the conditions, on which he is willing to sell his property. If he should couch his propositions in such ambiguous terms, that they might be understood differently : in consequence of which sales were to be made, and the purchase-money paid, he would come with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchase-money. All those principles of equity and of fair dealing, which constitute the basis of judicial proceedings, require that courts should lean against such a construction.

It being understood, that the opinion of the court on the first two questions, has rendered a decision of the third unnecessary, no determination respecting it has been made. It is directed, that the following opinion be certified to the circuit court.

1. That it is the opinion of this court, that under the act of the legislature of Pennsylvania, passed the 3d day of April, in the year of our Lord 1792, entitled “An act for the sale of vacant lands within this commonwealth,” the grantee, by a warrant, of a tract of land lying north and west of the rivers Ohio and Allegheny and Oonewango creek, who, by force of arms of the enemies of the United *States, was prevented from [*399 settling and improving the said land, and from residing thereon from the 10th day of April 1793, the date of the said warrant, until the 1st day of January in the year 1796, but who during the said period persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee.

2. That it is the opinion of this court, that a warrant for a tract of land lying north and west of the rivers Ohio and Allegheny and Oonewango creek, granted in the year 1793, under and by virtue of the act of the legislature of Pennsylvania, entitled, “An act for the sale of vacant lands within this commonwealth,” to a person who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon, from the date of the said warrant, until the 1st day of January in the year 1796 ; but who, during the said period, persisted in his endeavors to make such settlement and residence, vests in such grantee a fee-simple in the said land ; although, after the said prevention ceased, he did not commence, and within the space of two yeai’S thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his survey for the said land, and erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon, for the space of five years next following his first settling of the same, the said grantee being yet in full life.

Upon this opinion of the supreme court, the cause was again brought before a jury; the title was legally deduced from the state to the lessor of the plaintiff, and the facts of a prevention from making an improvement and settlement, under the 9th section of the act of April 1792, by a subsisting Indian war, as well as the facts of a persistence in the endeavor to make such improvement and settlement, were established, in detail, as they appear in the case of Commonwealth v. Coxe, ante, p. 170. After argument, by Ingersoll, E. Tilghman, Lewis and Dallas, for the plaintiff; and by Mollean, W. Tilghman and M. Levy, for the defendant, the following charge was delivered to the jury.

Washington, Justice.

— The plaintiff appears before you with a regular paper title from the warrant to the patent.

When this cause was tried before, the counsel for the defendant insisted, that the plaintiff’s title was built upon a contract, which he had not complied with, that he was to make a settlement, such as the enacting clause of the 9th section requires, unless prevented from doing so, by the enemies of the United States ; in which latter case, he was not only to prove a per-*4001 siste*ce *n endeavors *to make the settlement, during the period of J the war ; but was to go on to make it, after the prevention ceased. This question was so difficult, as to divide, not only this court, but the courts of this state. The question was adjourned to the supreme court, who have decided, that a warrantee, who, from April 17S3, to the 1st of January 1796, was prevented by the enemies of the United States, from making such settlement as the law required, but who, during that period, persisted in his endeavors to make such settlement, is entitled to hold his land in fee-simple, although, after the prevention ceased, he made no attempt to make such settlement. This we must consider as the law of the land, and govern our decision by it.

The questions then are : 1st. Was the Holland Company, from April 1793, to January 1796, prevented from making their settlement? and 2d. Did they persist in endeavors, during that period, to make it ?

What is the legal meaning of prevention, and persistence in endeavors ? Were they prevented, and did they persist, within this meaning? The first are questions of law, which the court arc to decide ; the latter are questions of fact, proper for your determination. What were they prevented from doing, in order to excuse them? The answer is, from clearing, fencing and cultivating two acres of land in every hundred acres contained in their warrant, from building a house thereon, fit for the habitation of man, and from residing or causing a family to reside thereon. To what extent were their endeavors to go ? The answer is, to effect these objects. It was not every slight or temporary danger, which was to excuse them from making such settlement, but such as a prudent man ought to regard. The plaintiffs stipulated to settle, as a society of husbandman, not as a band of soldiers. They were not bound to effect everything which might be expected from military men, whose profession is to meet, to combat and to overcome danger. To such men, it would be a poor excuse, to say, they were prevented by danger from the performance of their duty. The husbandman flourishes in the less glorious, but not less honorable walks of life. So far from the legislature expecting, that they were to brave the dangers of a savage en^1 uy, in order to effect their settlements, they are excused from making them, if such dangers exist. But they must persist in their endeavors to make them, that is, they are to persist, if the danger is over, which prevented them from making them. For it would be a monstrous absurdity, to say, that the danger1, which, by preventing them from making the settlements, would excuse them, would not, at the same time, excuse them from endeavors to make them, so long as it existed. It would be a mockery, to say, that I should be excused from putting my finger into the blaze of this candle, provided I would persevere in my endeavors to do *it, because, by making the r*401 endeavors, I could do it, although the consequences would be such as L I was excused from incurring. If, then, the company were prevented from making their settlements, by dangers from a public enemy, which no prudent man would or ought to encounter, and if they made those endeavors, which the same man would have made, to effect the object, they have fully complied with the proviso of the 9th section.

How then are the facts ? That a public war between the United States and the Indian tribes subsisted, from April 1793, and previous to that period, until late in 1795, is not denied ; and, though the great theatre of the war lay far to the north-west of the land in dispute, yet it is clearly proved, that this country, during this period, was exposed to repeated irruptions of the enemy, killing and plundering such of the whites as they met with, in situations where they could not defend themselves. What was the degree of danger produced by those hostile incursions, can only be estimated by the conduct of those who attempted to face it. We find them sometimes working out in the day-time in the neighborhood of the forts, and returning within their walls, at night, for protection ; sometimes, giving up the pursuit in despair, and retiring to the settled parts of the country ; then returning to this country, and again abandoning it. We sometimes meet with a few men, hardy enough to attempt the cultivation of their lands, associating implements of husbandry with the instruments of war, the character of the husbandman with that of a soldier ; and yet I do not recollect any instance, where, with this enterprising, daring spirit, a single individual was enabled to make such a settlement as the law required. You have heard what exertions were made by the Holland Company, you will consider what was the state of that country, during the period in question, you will apply the prin ciples laid down by the court to the evidence in the cause, and then say, whether the title is with the plaintiff or not.

Yerdict for the plaintiff.

         Although no opinion was publicly delivered, on the third question, it was understood, that the subject had been generally considered by the court; and my information (which does not, however, proceed from the judges themselves) states the result t« have been favorable to the grantee.


source: Caselaw Access Project

author: Washington, Justice.

license: Public Domain

text:
    *OCTOBER TERM, 1805.
    Present — Washington, Justice, and Peters, District Judge.
    Penn’s Lessee v. Klyne.

      Land titles in Pennsyl/vama.

    The Penn family were originally the sole owners of the soil of Pennsylvania; and prior to 1119, had a legal right to withdraw from the general mass of property, any land not appropriated te other persons, and to appropriate the same to their individual use.

    The claimant of a proprietary tenth or manor, must make title under the divesting law of 1779, and show that that it was known by the name of such manor, and duly surveyed and returned into the land-office, prior to the 4th of July 1776.
    A warrant and survey, if the consideration be paid, is a legal title, as against the proprietary; if the consideration be not paid, the warrantee has an equitable title, which he may perfect by payment of the amount due.
    A survey, under a warrant of resurvey, is good as an original survey, though it recite another which is invalid.
    By an act of the general assembly of Pennsylvania, passed on the 27th day of November 1779 (1 Dali. Laws, 622), the estates of the late proprietaries were vested in the commonwealth, subject to the following proviso :

      “ Sect. 8. Provided also, that all and every the private estates, lands and hereditaments of any of the said proprietaries, whereof they are now possessed, or to which they are now entitled, in their private several right or capacity, by devise, purchase or descent; and likewise all the lands called and known by the name of the proprietary tenths or manors, which were duly surveyed and returned into the land-office, on or before the 4th day of July, in the year of our Lord 1776, together with the quit or other rents, and arrearages of rents, reserved out of the said proprietary tenths or manors, or any part or parts thereof, which have been sold, be confirmed, ratified and established for ever, according to such estate or estates therein, and under such limitations, uses and trusts, as in and by the several and respective reservations, grants and conveyances thereof are directed and appointed.”
    The present suit, and a number of other ejectments, were brought for tracts of land, lying in York county ; in all of which, the general question was, whether the land was included in a tract called and known by the name *4031 a Pr0Prietai7 manor, duly surveyed *and returned into the land--1 office, on or before the 4th day of July 1776 ?
    The title of the lessor of the plaintiff to the premises in dispute, was regularly deduced from the charter of Charles II. to William Penn, provided there was a manor called and known by the name of Springetsbury, duly surveyed and returned, according to the terms and meaning of the act of November 1779.
    The material facts, upon the controverted point, were these : At the time that Sir William Keith was governor of the province, the controversy between the prorietor and Lord Baltimore, had arisen ; and many persons from Maryland intruded upon the adjacent lands in Pennsylvania. Under the pressure of these intrusions, Sir William, on the 18th of June 1722, issued a warrant to John French, Francis Worley and James Mitchell, in which he recited, “ that the three nations of Indians on the north side of Susquehanna are much disturbed, and the peace of the colony in danger, by attempts to survey land on the south-west bank of the river, over against the Indian towns and settlements, without any right or pretence of authority so to do, from the proprietor, unto whom the lands unquestionably belong ; that it is agreeable to treaty and usage, to reserve a sufficient quantity of land, on the south-west side of the Susquehanna, within the proprietor’s land, for accommodating the said Indians : and that the Indians had requested, at a treaty, held on the 15th and 16th instant, that a large tract of land, right against their towns on Susquehanna, might be surveyed for the proprietor’s use only ; because, from his bounty and goodness, they would always be sure to obtain whatsoever was necessary and convenient for them, from time to time.” Sir William’s warrant then proceeded, that “by virtue of the powers wherewith he is intrusted for the preservation of his majesty’s peace in this'province, and with a due respect and regard to the proprietor’s absolute title and unquestionable rights, he directs and authorizes the persons named in the warrant, to cross and survey, mark and locate, 70,000 acres, in the name and for the use of Springet Penn, Esq., which shall bear the name, and be called the manor of Springetsbury : beginning upon the south-west bank, over against Conestogoe creek ; thence, W. S. W., 10 miles ; thence, N. W. by N., 12 miles; thence, E. N. E., to the uppermost corner of a tract called Newberry ; thence, S. E. by S., along the head line of Newberry, to the southern corner tree of Newberry ; thence, down the side line of Newberry, E. N. E., to the Susquehanna; and thence, down the river side, to the place of beginning : and to return the warrant to the governor and council of Pennsylvania.” The survey being executed on the 19th and 20th of June, was returned to the council, on the 21st of June 1722, according to the following boundaries : “From a red oak *by a run’s side, called Penn’s run (marked S. P.), W. S. W., 10 miles, to a chesnut, by a run’s *- side called French’s run (marked S. P.); thence, N. W. by N., to a black oak (marked S. P.), 12 miles ; thence, E. N. E., to Sir Win. Keith’s western corner tree in the woods, 8 miles; thence, along the S. E. and N. E. lines of Sir Wm. Keith’s tract called Newberry, to the Susquehanna; and thence, along the river side, to the place of beginning ; containing 75,520 acres.”
    Sir William Keith having communicated these proceedings to the council, on the 2d of July 1722, it was thereupon declared, that “ so far as they concerned or touched with the proprietary affairs, they were not judged to lie before the board,” which acted as a council of state, and not as commissioners of property. Col. French, (one of the surveyors who executed the warrant) then undertook to vindicate the conduct of Sir Wm. Keith to the council, stating that “ the warrant specified his true reasons ; and that it was, under all circumstances, the only effectual measure, for quieting the minds of the Indians, and preserving the public peace.” The warrant and survey, however, could not be returned into the land-office at that time ; for it was said, that the land-office continued shut from the death of W. Penn in 1718, until the arrival of T. Penn in 1732 ; nor does it appear, that they were ever filed in the land-office, at any subsequent period.
    In order to resist the Maryland intrusions, encouragement was offered by Sir W. Keith, and accepted by a number of Germans, for forming settlements on the tract which had been thus surveyed ; and in October 1736, Thomas Penn having purchased the Indian claim to the land, empowered Samuel Blunston to grant licenses for 12,000 acres (which was sufficient to satisfy the rights of those who had settled, perhaps, fifty in number), within the tract of land “ commonly called the manor of Springetsbury,” under the invitations of the governor. But in addition to such settlers, not only the population of the tract in dispute, but of the neighboring country, rapidly increased.
    The controversy with Maryland was finally settled, in the year 1762, at which time James Hamilton was governor of the province ; and on the 21st of May of that year, he issued a warrant of re-survey, in which it was set forth, “ that in pursuance of the primitive regulations, for laying out lands in the province, W. Penn had issued a warrant, dated the 1st of September 1700, to Edward Pennington, the surveyor-general, to survey for the proprietor, 600 acres of every township of 6000 acres ; and generally, the proprietary one-tenth of all lands laid out, and to be laid out ; that like warrants had been issued by the successive proprietaries to every succeeding surveyor-general; that the tracts surveyed, howevei-, are far short of the due proportions of the proprietary; that, therefore, by order of the then *4061 Commissioners of property, and in virtue of the general warrant J aforesaid to the then surveyor-general, there was surveyed for the use of the proprietor, on the 19th and 20th of June 1722, a certain tract of land, situate on the west side of the river Susquehanna, then in the county of Chester, afterwards of Lancaster, and now of York, containing about 70,000 acres, called and now well knoAvn by the name of the manor of Springetsbury ; that sundry Germans and others afterwards seated themselves, by leave of the proprietor, on divers parts of the said manor, but confirmation of their titles was delayed on account of the Indian claim ; that on the 11th of October 1736, the Indians released their claim, when (on the 30th of October 1736) a license was given to each settler (the whole grant computed at 12,000 acres), promising patents, after surveys should be made ; that the survey of the said tract of land is either lost or mislaid ; but that from the well-known settlements and improvements made by the said licensed settlers therein, and the many surveys made round the said manor, and other proofs and circumstances, it appears, that the said tract is bounded E. by the Susquehanna; W. by a north and south line, west of the late dwelling plantation of Christian Elstor, called Oyster, a licensed settler; N. by a line' nearly east and west, distant about three miles north of the present great roads, leading from Wright’s ferry through York Town by the said Christian Oyster’s plantation to Monoekassy; S. by a line near east and west, distant about three miles south of the great road aforesaid ; that divers of the said tracts and settlements within the said manor have been surveyed and confirmed by patents, and many that have been surveyed, remain to be confirmed by patents, for which the settlers have applied ; that the proprietor is desirous, that a complete draft or map, and return of survey of the said manor, shall be replaced and remain for their and his use, in the surveyor-general’s office, and also in the secretary’s office ; that by special order and direction, a survey for the proprietor’s use was made by Thomas Cookson, ^eputy-surveyor (in 1741), of a tract on both sides of the Codorus, within the said manor, for the site of a town, whereon York Town has since been laid out and built, but no return of that survey being made, the premises were re-surveyed by George Stevenson, deputy-surveyor (in December 1752), and found to contain 436^ acres.” After this recital, the warrant directed the surveyor-general “ to re-survey the said tract, for the proprietor’s use, as part of his one-tenth, in order that the bounds and lines thereof may be certainly known and ascertained.” On the 13th of May 1768, the governor’s secretary, by letter, urged the surveyor-general to make a survey and return of the outline of the manor at least ; the survey was accordingly executed, on the 12th and 30th of June ; and the plat was returned into the land-office, and also into the secretary’s office, on the 12th of July 1768, ^containing 64,520 acres ; a part of the original tract of p 70,000 acres having been cut off, under the agreement between Penn L and Baltimore, to satisfy the claims of Maryland settlers.
    On the trial of the cause, evidence was given on each side, to maintain the opposite positions, respecting the existence or non-existence of the manor of Springetsbury ; from public instruments ; from the sense expressed by the proprietaries, before the revolution, in their warrants and patents; from the sense expressed by the warrants and patents issued since the revolution ; from the practice of the land-office ; and from the current of public opinion.
    The general ground taken by the plaintiff’s counsel (E. Tilghman, Lewis

       and Rawle) was,
    1st. That the land mentioned in the declaration is a part of tract called, or known by the name of a proprietary manor. 2d. That it was a proprietary manor*, duly surveyed, within the true intent and meaning of the act of the general assembly. And 3d. That the survey was duly made and returned before the 4th of July 1776.
    The defendant’s counsel (McKean, attorney-general, Hopkins and Dallas) contended,
    1st. That Sir William Keith’s warrant being issued in 1772, without authority, all proceedings on it were absolutely void ; and that neither the wax-rant nor survey had ever been returned into the land-office. 2d. That Governor Hamilton’s warrant was issued in 1762, to re-survey a manor, which had never been legally surveyed, and was, in that respect, to be regarded as a superstructure, without a foundation. 3d. That the recitals of Governor Hamilton’s warrant are not founded in fact; and that considering the survey, in pursuance of it, as an original survey, it was void, as against compact, law and justice, that the proprietor should assume for a manor, land that had been previously located and settled by individuals.

         1 W. C. C. 207.

       Conn v. Penn, Pet C. C. 496; Hurst v. Durnell, 1 W. C. C. 262; Penn v. Groff, Id. 390 Kirk v. Smith, 9 Wheat. 241.

         The original charter was given in evidence upon the trial.

         Duncan, not Lewis, Mr. Rawle’s MSS.

   The following charge was delivered to the jury :

Washington, Justice.

— In this cause, there are two questions. 1st. Have the lessors of the plaintiffs a title to the land in question ? If they have, 2d. Has the defendant a better right ?

1st. The lessors of the plaintiffs, or those under whom they claim, were once the sole owners and proprietaries, not only of the government, but of the soil of Pennsylvania, not in a political, but in their private and individual capacities ; not as trustees for the people, as to the whole, or any part of the soil, but in absolute fee-simple, for their individual uses, and this right was no otherwise defined, by concessions or agreements, by William Penn, or his descendants, than to render them trustees for such individuals, as should acquire equitable rights, to particular portions of land, under general or special promises, rules and regulations, which they may, from time to time, have entered into and established.

*Their right to appropriate lands to their own use, was not derived from, nor founded upon, any such rules or concessions, but flowed from their original chartered rights, which bestowed upon them the whole of the soil. But as it was their interest to encourage the population and settlement of the province, they erected an office, and laid down certain rules for its government, and the government of those who might wish to acquire rights to the unappropriated lands in the province, reserving to themselves a right to appropriate one-tenth of the whole to themselves, for their private and individual uses. From hence, the following principles resulted: that all persons, complying with the terms thus held out, acquired a right to the proportion of land, thus appropriated, not only against other individuals, who might thereafter attempt to appropriate the same land, but even against the proprietor himself, unless he had previously, and by some act of notoriety, evidenced his intention to withdraw such land from the general mass of property, and to appropriate it to his individual use. As a necessary consequence of this principle, whenever such was his intention, or was made known by a warrant of appropriation and a survey, to make out, and locate the ground thus withdrawn, this ivas notice to all the world, that no right to the land, thus laid off for the proprietaries, could be acquired by individuals, without a special agreement with the proprietaries, which might or might not be upon the common terms, as the proprietors might choose. But if, before such special appropriation by the proprietaries, an individual had, in compliance with the office rules, appropriated a tract, within the bounds of the tract thus laid off for the proprietaries, such prior appropriation, would no otherwise affect the rights of the proprietaries, than in relation to the particular tracts thus claimed. Their right to the residue, remained unaffected. On this ground, the right of the first proprietor stood at the time of his death, and so continued to exist, in his legal representatives, until the year A. D. 1779, when a law of this state was passed, divesting the proprietaries of all their estate, right and title, in or to the soil of Pennsylvania, and vesting the same in the commonwealth. But in this law, certain portions of land within the commonwealth are excepted, and the right of the proprietaries, to such portions, is confirmed and established for ever. The lessors of the plaintiffs, who, most undoubtedly, are entitled to all the rights of the proprietaries, are compelled to date their title from this law ; and therefore, it is necessary for them to show, that the land in p question is part of a tract of land, called and known by the name of a proprietary tenth or manor ; which was duly surveyed and returned into the land-office, on or before the 4th of July 1776.

They are to prove, 1st, that this was, in 1779, called and known by the name of a proprietary tenth or manor. The words of the law are peculiar. As to their private rights, they must be such *whereof they were in |-*408 1779 possessed, or to which they were entitled. But as to the tenths L or manors, it was sufficient, if they were known by that name, and had been surveyed and returned, before the 4th of July 1776. These expressions respecting the manors, were rendered necessary, to avoid giving the word manor a technical meaning; for there were no manors, in a legal acceptation of the word, in this state, but there were many tracts of land appropriated to the separate use of the proprietaries, to which this name had been given. The first inquiry, therefore, under this head, is, was the land in question part of a tract of land called and known as a manor, in the year 1776 or 1779? To prove this fact, the licenses granted by Thomas Penn, in 1736, to about 50 settlers, in different parts of the first, as well as second survey, in which this is called the manor of Springetsbury, is strongly relied upon, to show that, even at that early period, it had acquired this name : the tenor of the warrants afterwards granted for lands within this manor, varying from the terms of the common warrants, and this variance proved by witnesses, as marking this for manor land : the testimony of witnesses, to show that the west line of this manor was always reputed to go considerably beyond York to Oyster’s: the practice of surveyors and public officers, whenever warrants were issued to survey lands in the manor. But even if this tract of land had never acquired the name of a manor, prior to 1768, the survey made of it in that year, as a manor, is conclusive. From that period, it acquired, by matter of record, the name of a manor, and so it appears, by the evidence in the cause, it was called and known.

2d. Was it duly surveyed and returned into the land-office before the 4th of July 1776? That it was surveyed in 1768, is admitted; but it is contended, that it was not duly surveyed. It is so contended, because it was surveyed in 1722. That survey, it is said, was void, because made without authority, was not executed by the surveyor- general, and was returned into the council of state’s office. The survey then being void, it is said, vitates the survey of 1768 : the former being considered as the foundation, and the latter as'the superstructure. The survey of 1768 is executed, it is argued, under a warrant of re-survey in 1762, and consequently, the repetition of an act which has no validity, cannot give it validity. It is further argued, that the recital of the loss of the survey of 1722, is a mere pretence, a fraud, to enable the proprietaries to exchange bad land for good. Now, I do not understand this kind of logic: it is far too refined for the sober judgment of men who have to decide. If the invalidity of the first survey can have any effect upon the second, I should suppose it would establish it, beyond all doubt; because, if the first survey was good, and if the warrant of 1762 was merely an order to retrace the lines of that survey, the counsel might, with some plausibility at least, argue that the surveyor was r*40g bound to pursue the lines *of the former survey ; and this would give *- color to Ms observations, founded on the mistake of the public officers, as to the proper lines of the survey. But if the first survey was unauthorized and utterly void, then the second could not, in the nature of things, be a re-survey. Whatever words were used in the warrant, there is no magic in that word. If there never was a former survey, there could be no re-survey ; and consequently, the survey of 1768 was an original survey, founded on a special warrant, marking out the lines and bounds, by which the surveyor was to go, and such is the fact in this case, although the survey of 1722 is referred to in the warrant of 1762, yet the lines to be surveyed under this second warrant, are specially described. To those he was confined, and had he departed from them, the survey would, unless it was rectified by acceptance, have been void, as against the proprietary, and he might have directed it to be made again. It is not denied, but that the survey of 1768 is in conformity with the warrant. It was accepted, as a valid survey, and I cannot see, upon what ground, the defendants, or any other person, can now say, that it was void. Had not the proprietary a right to appropriate to his private use, the land included within the survey of 1768, in part of the tenth, which he had always reserved to himself? And if the warrant and survey make the appropriation, what does it signify, whether there was a prior survey or not ? or whether it was good or bad ? True, if, previously to the warrant of 1762, thix-d persons had acquired a right to parcels of this land, or had done so aftexuvax-ds, and before the survey in 1768 (but without notice of the wax-rants), the proprietaries would have been bound to make them titles, upon their complying with the terms of the grants to them. But this could not impeach his title to the residue of the land, comprehended within the lines of the survey. Upon the whole, then, the court is of opinion, that this manor was duly sui-veyed; and it is admitted, that the survey was returned into the land-office, before the 4th of July 1776. If so, the plaintiff’s title is unquestionable.

2d. Has the defendant a better title ? He claims by wan-ant, in 1747, regularly bx-ought down to him, for 95 acres. He has no patent, but yet, by the common law of this state, a warrant and survey, if the consideration be paid, is considex-ed a legal title against the proprietax-y, as much so as if he had a patent. If the considex-ation be not paid, then the legal title is not out of the proprietaries ; but still the warrant-holder has an equitable title, whxeh it is in his power to render a legal one, by payixxg what is due to the proprietaries. No proof is given of payment by the defendant, or any one of those under whom he claims, but you are called upon to px-esume it from length of time. Now, in a case of this sort, there is no room for presumption, the very cix-cumstance of the defendant appearing in court without a patent, or without showing or pretending, any ever was granted, destroyed *41 nl *PresmQption, which length of time might have created. For if In3 J had paid, he would have been entitled that moment to a patent: the one was the necessary consequence of the other. Men might long forbear to call for this confirmation of their titles, from the inconvenience of paying the consideration, but that he should pay, and not go on to perfect his title, is altogether improbable, and certainly not to be presumed ; but if the jux-y could presume anything from length of time, yet that presumption may be repealed, and in this case is.

The deed of 1771, from Pence, the grantee, to Shultz, proved that he had not paid, and the deed from Shultz’s executors to Stump, in 1794, that it was then paid. The defendant, therefore, has not a legal title to authorize a verdict in his favor ; but he has an equitable title, and may compel a grant upon paying or tendering what is due to the plaintiffs, with costs of this suit And if the plaintiffs should then refuse, this court, sitting in equity, would compel them, at the expense of paying costs. In the state court, I understand, the jury may make a kind of special or conditional finding, in consequence of the having no court of equity ; but this court having equitable jurisdiction, your verdict must be general.

Verdict for the plaintiffs.

         As some of the persons interested in the ejectments brought for lands in Springetsbury manor, had purchased from the state; and as the state would be entitled to all arrears of purchase-money, if the proprietary title should not be established; the legislature had authorized the governor to employ counsel to assist the counsel of the defendants. After the decision of the above ease, the legislature appointed James Ross and James Hopkins, Esqs., to take defence in the next ejectment, Penn’s Lessee v. Groff, which was tried in April term 180G; and upon the same charge, the same verdict was given. The defendant’s counsel having tendered a bill of exceptions to the charge of the court, arrangements were made to obtain a final decision in the supreme court, upon a writ of error. It appears, however,'from the journals, that the legislature is not disposed to interfere any further.


author: By the Court.

text:
    Gupp et al. v. Brown.

      Execution of commission.

      X commission, issued to four commissioners jointly, was executed by three only, two of whom were of the defendant’s nomination; on objection by the defendant to the reading of the depositions, it was held, that the commission was not well executed: commissioners do not derive their authority, from the parties, but from the court.
    A commission had issued to four commissioners, jointly, to take the depositions of witnesses in England. It was executed and returned by three of the commissioners only, two of whom, however, were of the defendant’s nomination.
    At the trial of the cause, the defendant’s counsel objected to the reading of the depositions ; and cited 1 Bae. Abr. 202 ; 2 Inst.
    The plaintiffs’ counsel observed, that the commission had not issued in the usual form; but insisted, that as the defendant’s *commissioners p¡. had attended, the objection could not be maintained on his part. L

      Ingersoll and Todd, for the plaintiffs. Franklin and Dallas, for the defendant.
   By the Court.

— The objection is fatal. The commissioners do not derive their authority from the parties, but from the court ; and as it is a special authority, it must be strictly pursued. The power given to four, cannot be well executed by three commissioners.

The evidence overruled.

      &) Those who execute a commission, are appointed by the court, and although they may be nominated by the parties, they are not their agents. Gilpin v. Consequa, Peters C. C. 88.

       If a commission, directed to five commissioners, of whom three are named by the plaintiff’ and two by the defendant, is executed by three only, or by any number less than the whole, a deposition taken under it cannot be read, although the two commissioners named by the defendant, by whom the objection is made, were present. The authority of the commissioners is special, and must be executed according to the tenor of it. Armstrong v. Brown, 1 W. C. C. 34. See also Hoofnagle v. Dering, 1 Yeates 302. A joint commission cannot be executed by some of the commissioners, although the others refused to act. Munns v. Dupont, 3 W. C. C. 41. A deposition taken by a commissioner, in conjunction with a person not named in the commission, is not admissible in evidence. Willing v. Consequa, Peters C. C. 309.


author:
By the Court.
      Peters, Justice. Washington, Justice.

text:
    * APRIL TERM, 1806.
    Present — -Washington, Justice, and Peters, District Judge.
    United States v. Richard Johns.

      Habeas corpus. — Ohallenges.—Witness.—Evidence.—Hasting away vessel.

    Upon a habeas corpus, it can only be inquired, whether there is sufficient probable cause to believe, that the person charged has committed the offence stated in the warrant of commitment.
    On an indictment under the act of congress of 20th March 1834, for easting away and destroying a vessel, of which the defendant was the owner, to the prejudice of the underwriters, the accused has the right of peremptory challenge, as at common law, on a capital charge.
    The president of an incorporated company, by which a vessel has been insured, is a competent witness against the defendant, on such a prosecution.
    A copy of a manifest, taken from the books of a custom-house, is a copy of a record, and it may be given in evidence, when properly proved.
    An exemplification of a law of a state, under the great seal thereof, is admissible in evidence, without any other attestation.
    The meaning of the word “ destroy,” in this act, is to unfit a vessel for service, beyond the hopes of recovery by ordinary means; casting away, is a species of destroying.
    This was a prosecution, on the 2d section of the act of congress, of the 26th of March 1804 (2 U. S. Stat. 290), which is expressed in these words : “ That if any person shall, on the high seas, wilfully and corruptly cast away, burn or otherwise destroy, any ship or vessel of which he is owner, in part or in whole, or in anywise direct or procure .the same to be done, with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance thereon ; or if any merchant or merchants that shall load goods thereon, or any other owner or owners of such ship or vessel, the person or persons offending therein, being thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall suffer death.”

    In the course of the prosecution and trial the following points occurred :
    I. The defendant was brought by habeas corpus before the court, holding an adjourned session, on the 8th of January 1806, when it appeared ^ 1 that, on the 26th of December 1805, he *had been committed by the -* mayor of the city of Philadelphia, charged on the oath of Andrew Clarke, with having, on the 20th day of August last, or thereabouts, on the high seas, scuttled the schooner Enterprise, of Baltimore, with intention to defraud the underwriters, as he believes.”

      The prisoner’s counsel objected, 1st. That the commitment was vague, and did not describe the offence, within the words of the act of congress. 2d. That the offence was not committed within the district of Pennsylvania; and no demand having been made for his surrender, by the executive of any other state, there was no law to warrant his arrest or detention. 3d. That the evidence was not sufficiently strong, to found an indictment against him, and he was entitled, at all events, to be discharged on bail.
    It was answered by the Attorney of the District, 1st. That whatever might be the formal defects of the original commitment, the court, being now satisfied with the evidence, would remand the prisoner for trial. 2d. That it was not necessary, for that purpose, to give positive'proof of guilt; but to show probable cause for the accusation. 3d. That the case did not come, at all, under the constitutional or legislative provisions for the surrender of a fugitive from the justice of another state ; but it was the case of a crime against the United States, committed on the high seas ; when the trial is directed to be in the district where the offender is apprehended. (1 U. S. Stat. 113, § 8 ; Ibid. 91, § 33.)

        а) s. c. 1 W. C. C. 363.

       The second member of the section is so inaccurately expressed, that the attorney of the district thought, at first, there must have been some error of the press; but the secretary of state informed him, that the printed copy was found, upon a comparison, to agree exactly with the roll. See the analogous English statutes, 4 Geo. I., c. 12, § 3; 11 Geo. L, c. 29.

   By the Court.

— Upon a habeas corpus, we are only to inquire whether the warrant of commitment states a sufficient probable cause to believe, that the person charged has committed the offence stated. We have heard the evidence ; and cannot doubt of its sufficiency to that extent. We do not think that the prisoner ought either to be discharged or bailed: he must be remanded for trial.

II. When the panel of jurors was called over, the prisoner’s counsel claimed the right of challenging thirty-five jurors peremptorily, as the offence charged in the indictment, had been created, since the act of the 30th of April 1*790 (1 U. S. Stat. 119, § 30); and the right of challenge remained as at common law. (4 Hawk. 389 ; 4 Bl. Com. 352.) The clause, respecting challenges is in these words: “If any person or persons be indicted of treason against the United States, and shall stand mute, or refuse to plead, or shall challenge peremptorily above the number of thirty-five of the jury; or if any other person or persons be indicted of any other of the offences herein-before set forth, for which the punishment is declared to bo death, if he or they shall so stand mute, or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury, the court, in any of the cases aforesaid, shall, notwithstanding, ™ proceed to the *trial of the person or persons so standing mute or L challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.”

The Attorney of the District said, he was indifferent which way the court decided the point; but it was proper to remark, that the 2Sth section of the judicial act referred, generally, to the state law, for the rule relating to juries (1 U. S. Stat. 88); that the state law limited the right of peremptory challenge, in cases like the present, to the number of twenty; that the 30th section of the penal act (Ibid. 119) obviously considers the whole law of peremptory challenge provided for, in future, as well as existing, capital cases ; and that it was improper to refer to a common-law rule, if a rule was prescribed by statute.

Peters, Justice.

— The words of the penal act when they restrain the common-law right of peremptory challenge, also expressly confine the operation of the restraint, to the offences before set forth in the act. For offences not set forth in the act, the only rule is furnished by the common law; and it is the privilege of the prisoner that it should be applied and enforced.

Washington, Justice.

— The right of challenge was a privilege highly esteemed, and anxiously guarded, at the common law; and it cannot be doubted, but that at the common law, a prisoner is entitled, on a capital charge, to challenge peremptorily thirty-five of the jurors. If, therefore, the act of congress has substituted no other rule (and, in the present instance, it is clear, that none has been substituted), the common-law rule must be pursued. It is not easy, indeed, to assign a reason for introducing the words that confine the provision, respecting peremptory challenges, to offences before set forth in the act; but it is enough to bind our judgments, that the words are actually introduced.

III. The indictment contained four counts: 1st Count. That the prisoner being owner, in whole, of a certain ship or vessel called the Enterprise, of Baltimore, “the Baltimore Insurance Company, by their president, and under their corporate seal, attested by their secretary, did subscribe and underwrite a certain policy of insurance upon the said ship or vessel, called the Enterprise, in the sum of $2700, upon a certain voyage, &c. And the said Richard Johns, well knowing the premises, with intent and design wilfully, corruptly, unlawfully, and feloniously to prejudice the said *,, Baltimore Insurance Company, ¿so., and by means *of the aforesaid J insurance, unjustly to acquire to himself unlawful and corrupt gain and advantage, on the, &c., with force and arms, on the high seas, ¿so., wilfully, corruptly, unlawfully and feloniously, did cast away and destroy the said ship or vessel, called the Enterprise, in and upon the voyage in the said policy of insurance, mentioned, ¿so., to the great damage of the said Baltimore Insurance Company, against the form of the act of the congress of the United States, &c.” 2d Count. That he committed the felony, by feloniously boring auger-holes through the bottom of the vessel. 3d Count. That he feloniously directed and procured the vessel to be cast away and destroyed. 4th Count. That he feloniously directed and procured the vessel to be cast away and destroyed, by feloniously boring auger-holes through the bottom of the vessel.

1st. The president of the Baltimore Insurance Company was offered as a witness, to prove the order for insurance, and the subscription to the policy. The prisoner’s counsel objected to his competency; and cited 1 P. Wms. 595; 1 McNall. 52-3. But the objection was overruled.

2d. A copy of the manifest of the outward cargo of the Enterprise, sertified tinder the hands and seal of the custom-house officers of Baltimore, was offered in evidence, after proof by the witness, that he had himself compared it with the record. The prisoner’s counsel objected, that there was no evidence, that the original manifest was subscribed by the prisoner, or even delivered by him. The district-attorney answered, that by 21st section of the impost law (1 IT. S. Stat. 642) it was made the duty of the collector of the port, “to record, in books to be kept for that purpose, all manifestsand that being a record, the proof offered was unexceptionable.

By the Court. — In that point of view, the evidence is clearly admissible.

3d. The policy of insurance, under the corporate seal of the company, signed by the president and attested by the secretary, was offered in evidence. The prisoner’s counsel objected, that the charter of incorporation must be produced, before any corporate act or instrument could be given in evidence. The attorney of the district opposed the objection, on account of the difficulty, which the precedent would create in future prosecutions : but the court deeming it necessary to establish the corporate capacity of the Insurance Company, he read the acts of the legislature of Maryland on that subject, from the statute book, published by authority; and these being limited in their duration, he offered an exemplification of a recent act, protracting the existence of the corporation at and beyond the time or subscribing the policy in ’^question. The exemplification, r*,, „ however, was under the great seal of Maryland, but was not attested L by the governor, or any other principal officer of the state. The prisoner’s counsel objected to the want of such attestation; but the objection was overruled.

By the Court. — The act of congress declares, “ that the acts of the legislatures of the several states shall be authenticated, by having the seal of their respective states affixed thereto.” (1 IT. S. Stat. 122.) It does not require the attestation of any public officer, in this case; although in all the cases afterwards provided for, such an attestation is required. There is a good reason for the distinction. The seal is, in itself, the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy as to the officer entitled to affix the seal, which is a regulation very different in the- different states.

4th. On the evidence in the cause, various grounds of defence were adopted by the prisoner’s counsel, Lewis, Ilamle, 8. Levy, 8. Ewing and C. Lngersoll, and controverted by Dallas, attorney of the district, of which the principal were these: 1st. That the second section of the act of congress does not expressly authorize an indictment against an American citizen ; and it would be an usurpation of legislative power, to extend its operation to aliens, committing offences on the high seas. 2d. That the act does not expressly embrace the case of an insurance by a corporation; and a corporation is not included in the description of persons. 3d. That the indictment describes the Enterprise to be a ship or vessel, which is not sufficiently specific. 4th. That in fact, and in law, the vessel was not cast away and destroyed. 5th. That if the vessel were feloniously destroyed, the evidence does not prove the prisoner to be the felon.

The Court, in the charge to the jury, having reviewed and commented upon the facts, observed, that the objections, in point of law, would appear on the record, and might be taken advantage of, upon a motion in arrest of judgment. On the law, therefore, the court avoided giving any opinion at present, except in relation to the question, what constituted the destruction of a ship or vessel, within the meaning of the act of congress ? On this question, they had deliberated much; and as the result, reduced to writing an opinion, which they delivered, in charge to *the jury, in these -* words : “ To destroy a vessel, is to unfit her for service, beyond the hopes of recovery, by ordinary means. This, in extent of injury, is synonymous with cast away. It is the generical term •, casting away is a species of destroying, as burning is. Both mean such an act, as causes a vessel to perisli, or be lost, so as to be irrecoverable by ordinary means.”

The defendant was acquitted, owing, it is believed, to a doubt, whether he had bored himself, or directed any other person to bore, the auger-holes in the bottom of the vessel; which was a new vessel, picked up at sea, after she was abandoned, carried into St. Jago de Cuba, and there (the holes being discovered) soon repaired, and fitted again for sea.

         In the case of the United States v. Russell, on an indictment for murder on the high seas, tried at October term 1806, the prisoner’s counsel, at first, claimed the right of peremptorily challenging thirty-five jurors; but that being an offence set firth in the penal law, was expressly embraced by the provision limiting the peremptory challenges to twenty; and the claim was, accordingly, overruled.

         But see 1 W. C. C. 368.

         In the course of the defence, the following authorities were cited: 2 East P. C. 1097-8; Johnson’s Dict. “Cast-away;” 8 Mod. 67, ca. 48; Ib. 74, ca. 52; 4 Hawk. 67, 62; 2 Burr. 1037; Plowd. 177; Rex v. Harrison, 1 Leach, 215; 2 Str. 1241; 8 Mod. 66; 1 Hale 635; 2 Id. 389; 3 Inst. 202; 4 Bl. Com. 881; Leach 109; Cow. Interp.; 2 Hawk. c. 25, § 82; 2 Rol. Abr. 30; 5 Mod. 137-8. The attorney of the district cited 1 Leach 215; 1 Bl. Com. 467; 2 Inst. 702; 1 Woodes. 195.


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    Symonds v. Union Insurance Company.

      Marine insurance. — Total loss.

    If a vessel be prevented, by a blockading squadron, from entering any of the enumerated ports, the voyage is broken up, and the assured may abandon, and recover for a total loss.
    Insurance was effected by the plaintiff, who was the owner of a vessel, on her freight and cargo, by separate policies, “ at and from New York to Cape Frangois, with liberty to proceed to another port, should Cape Frangois be blockadedthe .vessel sailed from New York, with instructions where to proceed, if she could not enter Cape Frangois; she was prevented from ehtering that port, or any other designated in. the instructions given to the master, and was obliged by the blockading force to go to another place, where the master disposed of the goods and invested the proceeds in a return-cargo, with which the ship returned to New York: Meld, that the insured might abandon, and recover as for a total loss.
    The plaintiff bad effected, at the office of the defendants, three policies of insurance, dated the 12th of September 1803. The first on the schooner Diana, Nicholas, master, valued at $4500; the second, on the freight of the schooner, valued at $1500, and the third, on her cargo, valued at $4000 ; on a voyage, “at and from New York to Cape Franpois, with liberty to proceed to another port, should Cape Franpois be blockaded, and the vessel prevented entering that port, from that, or any other cause, and at and from thence, back to New York.” The order for the insurance declared, “that the assured is'not to abandon, if she cannot enter the Cape, from blockade or other cause, but liberty is given to proceed to some other port.”
    The schooner sailed from New York, on the 19th of September 1803, with instructions “ to proceed to Cape Frangois ; and if she could not enter, from blockade or other cause, to steer towards the Bite of Leogane, and enter either into Port-au-Prince, or some other port in the bite.” On the 8th of October, she was boarded, off the island of St. Domingo, by an officer from the Blanche, a British frigate, who sent her papers on board the Bellerophon, another British ship of war. On the next day, Captain Nicholas was taken on board the Bellerophon, and was informed, “ that the island of St. Domingo was blockaded by an English squadron, in consequence of which, no vessel would be permitted to enter any port or harbor in the said island;” and, to that effect, the register and papers of the schooner were indorsed. It appeared also from the master’s testimony, “ that he was told, he was not permitted to proceed on his intended voyage, nor to go to Cuba, but should proceed down to Kingston, Jamaica; that he was ordered to keep near the frigate Desire, until they had cleared the island of St. Domingo ; that on his arrival at Kingston, he was also told by the customhouse officers, that he could not *elear out for Cuba, whither he was [*418 still desirous of going ; and that, finally, the cargo was landed and sold at Kingston. The proceeds were then invested in another cargo, with which the ship returned to New York. On her arrival there, about the 17th of December 1803, the plaintiff abandoned the cargo and freight to the defendants, and claimed as for a total loss ; to recover which (deducting the proceeds of the cargo, and accounting for the profits on the investment homeward), the present action was instituted.
    On the trial of the cause, these grounds of defence were taken ; 1st. That upon the specific terms of the contract, the assured had not a right to abandon. The consequence of being turned aside by a blockading force was contemplated by the parties, but not insured against; for the voyage insured was to the Cape, or to another unblockaded port of Hispaniola. The whole island being blockaded, another port must be sought at the risk of the assured; the conduct of the British being neither capture, nor arrest; but simply precaution, to prevent a breach of blockade. 2d. That on general principles, it is not a case of abandonment for a total loss. The cargo was not prevented from arriving at its place of destination, by any risk insured against, acting upon the subject insured immediately, and not circuitously. There has been no capture, with a view to condemnation ; no arrest, for the purpose of an embargo, in the service of a foreign prince ; the cargo remains specifically the same ; the ship has returned ; wages have been paid, and of course, freight has been earned ; nothing, in short, has affected the voyage insured, but the act of preventing a breach of blockade, and the low state of the Kingston market; and for neither of these is the underwriter liable. 2 Marsh. 434; 2 Burr. 1198; 1 T. R. 187; 2 Marsh. 482; 2 Burr. 696; 3 Atk. 195; 2 Str. 849; 2 Marsh. 496; Doug. 219; 1 Esp. 237; 3 Bos. & Pul. 388; 5 Esp. 50; Mill. 305-6; 5 East 388.
    The answer, for the plaintiff, was, in general, that the voyage insured had been destroyed, by the superior force of a foreign power ; and that, independent of the means taken to prevent a breach of the blockade, the vessel had been constrained, against the express desire of the master, to proceed to a particular port, in exclusion of every other.

      Rawle, for the plaintiff. Dallas, for the defendant.

         s. c. 1 W. C. C. 382.

   And The Court, in the charge to the jury, declared the law to be clearly with the plaintiff ; on which, a verdict was found in his favor for the goods and freight, at the value insured, subject to a deduction of the proceeds of the homeward investment.


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    *Conframp et al. v. Bunel.

      Lex loei contractus.

    A contract is governed by the law of the place where it was made.
    Where the lex loci contractus protects a party from execution, on a judgment upon a contract, he will not be liable to arrest on mense process, out of this court, for the same cause.
    Capias. On a rule to show cause why the defendant should not be discharged on common bail, the following facts were established by the plaintiff : That in the year 1787, the defendant gave his note for 55,000 livres, to a person of the name of Horguetand, payable in two instalments, for value received in 55 negroes. On the 8th of February 1787, the note was assigned to the plaintiffs, and several partial payments were afterwards indorsed upon it. In November 1789, a suit was instituted at Port-au-Prince, to recover the balance ; and a judgment by default was entered for 36,666 livres ; to recover which was the object of the present action.
    For the defendant,

    it was shown, that all the parties to the contract were French subjects, resident in the island of St. Domingo, at the time the contract was made ; that they continued French subjects at this time ; that in August of the year 1793, the French commissioners (Polverel and Santhorax) had proclaimed, at Port-au-Prince, the abolition of slavery, and the freedom of the negroes ; which the national convention ratified, in the February ensuing (4 Edw. Hist. West Ind. 146, 219); that, in consequence of this emancipation, the very negroes who had been purchased by the defendant, had been taken from him ; and that with a view to the calamitous situation of the colony, the following laws had been enacted by the French government :
    1st. Extract from the law of the 6th of September 1802.
    Sect. 1. Until the 1st of Vendemaire, 16th year, all suits are suspended as well against the principal debtors, as their securities, for debts contracted prior to the 1st of January 1792, for the purchase oí real property, or of negroes.
    Sect. 6. The creditors may, however, take all conservatory steps for the preservation of their rights, and even have the amount of their debts liquidated by judgments, but the execution thereof shall be stayed according to the first section.

      Moylan, for the plaintiffs. Du Ponceau and Dallas, for the defendant.
    2d. Supplement to the above law, of the 12th of April 1803.
    The preamble states that doubts have arisen, as to the construction of the fith article ; and the supplement declares,
    Sect. 1. That by the words “conservatory steps” (actes conservatoires) are not to be understood any acts, which would prevent the effect of the suspensive clause of the law, such as attachments of property, levies on real or personal estate, oppositions to the payments of rents, or other debts, &c.

    Sect. 2. Oppositions (in nature of attachments) made to the payment of principal sums due to the debtors, shall not prevent such payments, p but the debtor shall be bound to make it *appear, within six months, L that he has employed those capitals, in improving his St. Domingo plantation, otherwise, he will not be entitled to the benefit of the law.
    Upon these premises, the defendant's counsel contended, 1st. That the contract of the parties was to be expounded and enforced, according to the laws of France. 1 Bos. & Pul. 138; 3 Ves. jr. 446; 4 Ibid. 577; 1 W. Bl. 258; 1 H. Bl. 665, 690; 4 T. R. 184. 2d. That upon the general principles of the French law, the defendant was not liable to be personally arrested on this contract, which does not constitute a commercial debt 7 Tit. 1 Art. Ord. of Com. p. 386. 3d. That the right of action, to recover the debt, was expressly suspended by the law of the 6th of September 1802; and it was as irregular to commence the suit, before the'suspension had run out, as it would be to obtain judgment and issue execution.
    The plaintiffs' counsel answered :
    1st. That this was a commercial debt, within the terms of the authority cited, for which a personal arrest was authorized by the law of France. 2d. That the law of the 6th of September 1802, applies to original causes of action, and not to cases in which judgment had been previously rendered. 3d. That even where the lex loci governs the contract, it is the law of the country in which the suit is brought, that must furnish the form of the remedy. Kaim’s P. E. 567-8; 2 Vern. 540; 3 Dall. 373; 1 Bos. & Pul. 139, 140. 4th. That the utmost benefit, which the defendant can reasonably claim from the law-of September 1802, is a stay of execution, until the specified period has elapsed: but in the meantime, the plaintiffs should be permitted to proceed to obtain judgment, and to secure the defendant’s appearance eventually to answer it.

       s. a 1 W. C. C. 340, reported as Camfranque v. Burnell.

   The Court were clearly of opinion, that the parties were bound by the law of the 6th of September 1802 ; that the present case was within the law ; and that the suspension of the law applied as well to the commencement of the suit, as to the issuing of an execution.

The rule made absolute.

         The defendant’s counsel, proceeding on the grounds above stated, did not make, on this preliminary question, the objection, that the circuit court has no jurisdiction of a cause, in which both parties are aliens; an objection that has, repeatedly, been adjudged to be fatal


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    *Russell, for the use of Crucet, v. Union Insurance Co.

      Insurable ■interest. — Abandonment.—Record of court of admiralty.

    A surety for the payment of the value of a cargo, in case of condemnation by a foreign court, lo whom it has been delivered for indemnity, has an insurable interest therein.
    If the cargo, after effecting an insurance thereon, be taken out of the possession of such surety, by a decree of restitution, he may abandon for a total loss.
    The record of a foreign court of admiralty is evidence to prove a condemnation; but between assurer and assured, it is only evidence of the cause of condemnation.
    If the record of a foreign court of admiralty, containing copies of papers, the originals of which are not produced, be read in evidence, without objection, it is too late to object, after the argument has commenced.
    Covenant, on an open policy for $10,000, at a premium of ten per cent., upon goods on board the ship Hibberts, on a voyage at and from the Havana to New York.
    The case was this : The ship Hibberts and her cargo, the property of British subjects, were captured by a French privateer, and carried to the Havana. They were there claimed by Mr. C. Frazier (an English merchant), on the recommendation of Captain Vansittart, commanding a British frigate, for the British owners, and an order for restitution was granted by the Spanish government, on security being given for the appraised value (to wit, the ship $9655, and the cargo $22,400), to abide the issue of an appeal, made by the captor, from the order of restitution. The master had been removed, at sea, at the time of the capture, and sent to the United States; but the first and second mates, who went in the ship to the Havana, offered the security ; which was given at their instance, by Mr. Felix Crucet (a Spaniard, constituted their attorney), and the ship and caigo were thereupon delivered to to him, on account of the original owners; but accompanied by a written declaration from Mr. Frazier, “ that ship and cargo were subject to Crucet’s orders, until he shall be finally indemnified for his disbursements for costs of suit, outfits, commissions, &c., and be released from his security.” . Crucet having determined to send the ship and cargo to the United States, wrote two letters, dated, respectively, the 7th and 23d of July 1804, to his correspondent, Henry Hill, at New York, in which, after representing the facts above stated, and ordering insurance, he proceeds in these words :
    “In my letter of the 7th inst. ordering insurance on the ship Hibberts and caigo, I stated fully the footing on which she was delivered to me by the governor and auditor of- war, on security and mortgage ; and she now proceeds to your address, with all the papers then mentioned on board, besides the invoice and bill of lading of the cargo. From what are herewith inclosed, you will observe, that the mortgage and security have been given for $22,410, value of the cargo, and $9655, value of the ship Hibberts, to hold that amount of stock, being $32,065, subject to the order of the court here, until the appeal entered to the supreme council of war in Madrid, shall be decided. You will also observe, that my account of advances for law-costs, repairs, sails, rigging, provisions, advance wages, &c., for the ship, in this port, amounts to §6444.Olf-; my commission of guarantee, on giving the security and mortgage, five per cent, on $32,065, is $1653.01, and my corn-mission for agency and trouble, two and a half per cent., $826.0 Í, makes total $8923.0i-f-, *and that the last-mentioned sum of $8,923.0'7j-, must be p422 paid to me here, and I must be entirely freed and released in this *- city, for the security and mortgage I have given for the ship and cargo, before giving up any part of the proceeds thereof. I have wrote to the concerned in England, apprising them of these circumstances, and that I shall give them due advice, from time to time, of the progress of the appeal. You will, I hope, exert yourself to dispose of the ship and cargo to the best advantage, for the benefit of the concerned, sending the account sales to me here, as soon as convenient, in order to be transmitted to them in England.”
    The letter of instructions from Crucet to the master of the Hibberts, directed him “to proceed direct to New York, and there deliver the letters, and other papers, to Mr. Henry Hill, Jun., and in his absence, to Mr. Samuel Russell, merchant there, to whom the cargo is consigned. These gentlemen will also take charge of the ship in New York, and will furnish you with money to pay off the officers and crew; and will pay you any balance that may be due to yourself.” And the invoice was headed, “ Invoice of the cargo on board the ship Hibberts, of London, John Haines, master, bound for New York, and consigned to Mr. Henry Hill, Jun., merchant there, by Felix Crucet, on account and risk of the owners, underwriters or others, in England, or those who may be concerned in said ship and cargo.”
    On the 13th of August 1804, 1. S. Wain, for Samuel Russell (the consignee appointed by Crucet, in case of Hill’s absence), effected the insurance which is the ground of the present action. The ship sailed on the voyage insured ; but was captured by the Leander, off Sandy Hook, on the 16th of August 1804, and sent to Halifax, where she arrived on 31st of August. The vessel and cargo were there libelled in the court of vice-admiralty as prize, and claimed by the master, for Crucet: but by the decree of the court, pronounced on the 10th of October, the claim was rejected, and the judge “pronounced the ship and cargo to be the property of British subjects, recaptured by his Majesty’s ship of war Leander, and decreed the said ship and her cargo to be restored to the original British owners, on payment to the recaptors of one-eighth part of the value thereof, and the claimant to pay costs.”
       From this decree, the claimant appealed; but the vessel and cargo were delivered, on security, to the agent of the original British owners, and sent by him to England.
    When the ship was captured, it was notified to the defendants, who agreed to pay a just proportion of the expense of recovering *the r* property; but no actual abandonment, or offer to abandon was *• made, until the 2d of November, when the decree of the vice-admiralty had been received by the plaintiff.
    On the trial of the cause, the plaintiff’s counsel read to the jury, the policy, the orders of Crucet and his agents for insurance (which had been communicated to the defendants, at the time of effecting the insurance) and the whole of the record of the proceedings in the court of vice-admiralty ; but neither the original hypothecation to Crucet, nor the original bill of lading, nor the original invoice, nor any other proof of the special property of the plaintiff in the ship and cargo was produced : and as soon as the plaintiff’s counsel began to argue upon the papers found on board the ship, and spread upon the record (to wit, the hypothecation, bill of lading and invoice) as proof of property, the opposite counsel objected, that although the whole record must be read, it was only evidence of the sentence of restitution.
    The general defence was then placed on these grounds :
    1st. That the abandonment was not made in due season ; which, however, was an objection mentioned, but not strenuously urged. (Park 82, 81, 172; 1 T. R. 608.) 2d. That the insurance was effected upon ship and goods, on account and risk of the original British owners, not on the special interest of Crueetfor his use and indemnity. (Park 267-8; 1 T. R. 309.) 3d. That the decree is conclusive to prove that the property was not in Crucet; and the restitution to the original owners was restitution to him as their agent. 4th. That the statements of Crucet and his agents to the underwriters, are not evidence of the facts contained in them upon the present trial; nor are the papers set forth in the record of the court of vice-admiralty, legal or conceded proofs of property.
    For the plaintiff, it was contended:
    1st. That his interest was of an insurable nature. 2d. That the nature of his interest was communicated to the defendants, at the time of effecting the insurance. 3d. That the loss of his possession, on the capture and restitution, was the loss of his lien, and in its effect total. 4th. That the record being read, without previous objection or restriction, every part of it became evidence in itself ; and the property of the plaintiff was proved by it. 6th. That, however, the question of property was a question of fact; and the papers on the record must, at least, be re garded as corroborating the statements of the plaintiff and his agents, to prove his interest in the subject insured.

       s. c. 1 W. C. C. 409.

      s) In speaking of the decree of restitution, taking the property from the hands of a Spaniard, who had so fairly obtained a lien upon it, the court was reminded, that although war was declared between Great Britain and Prance, on the 16th )f May 1803, Spain did not become a party to it until the 11th January 1805.

   The charge of the court was delivered by the presiding judge, in substance as follows :

Washington, Justice.

— Though the case involves points of some novelty, and of considerable difficulty, we have so far satisfied'our minds, that we *424] will not request the jury to reserve anything *for future consideration, although either party is at liberty to move for a new trial.

The first and principal difficulty is, whether Crucet has proved his interest in the subject insured, by proper evidence. The record of a court of admiralty is always evidence to prove a condemnation; but, certainly, in cases between the insurer and insured, it is only evidence, according to the general rule, to prove the cause of condemnation. On the present occasion, however, the record was road to the jury, without opposition ; and, on this ground alone, we decide it to be an exception to the rule. For if the objection had been made, the plaintiff would have enjoyed an opportunity to supply the proof by other means.

The record is, therefore, considered as proof of facts, so far as it exhibits documents, which, if now produced, would be evidence in the cause. This still excludes, on the one hand, letters written by Crucet; while On the other hand, it admits those papers, authenticated by other sources, that show the extent of Ms advances, the nature of his engagements, and the lien which he acquired upon the ship and cargo.

Ingersoll and Rawle, for the plaintiff. E. Tilghrnan and Dallas, for the defendants.

Upon the evidence, thus admitte 1, Crucet appears clearly to have acquired a contingent interest in the property ; but it was, at first, a question of great doubt with us, whether it was an insurable interest. As to his actual advances of money, there could be no doubt, provided there was (as there is not) satisfactory evidence on that point, independent of what proceeds from himself. But to the right of insurance, the obligation of abandonment, in case of loss, would seem to be an inseparable incident; and we doubted, whether Crucet had anything in the property, which he could abandon upon n loss, and of course, which he was entitled to insure. On reflection, however, we conclude, that upon an abandonment, the underwriters acquire all Crucet’s rights and remedies against the British owners ; and as to the manner of insuring his interest, it is clear, that a person having a lien upon a cargo, may cover it by an insurance on goods.

It is true, that the assured should communicate to the underwriter the nature of his interest in the subject insured, though it need not be specified in the policy ; and on this ground, a question of fact arises, for the consideration of the jury. If the insurance of the special interest, and not of the principal ownership, made a material difference in the risk, or would have altered the amount of the premium; and the fact was not sufficiently disclosed to the defendants, the omission would vacate the policy.

After this view of the case, it only remains to inquire, whether a loss has happened, which entitles the plaintiff to recover? He has lost his possession : and although we will not decide, whether the capture and sentence have "destroyed his lion; we think, that as they have rendered it necessary to pursue the property, through an expensive, troublesome and doubtful medium, he has a right to consider the occurrence as a total loss, and to recover the amount of the insurance.

Verdict for the plaintiff.

         As to what is an insurable interest, see Sansom v. Bell, post, p. 439; Warder v. Horton, 4 Binn. 529; Wells v. Philadelphia Ins. Co., 9 S. & R. 103; Columbian Ins. Co. v. Lawrence, 2 Peters 25.

       A motion was afterwards made for a new trial, on the single ground, that there was no proof of property in the plaintiff, except the ship’s papers, spread upon the' record of the court of vice-admiralty. An affidavit was filed, stating that Mr. Ingersoll had applied to Mr. Dallas, before the jury were sworn, to admit the record as proof of property, which was refused; and that the application of the record to that purpose (after it had been read), was opposed, as soon as it was attempted. But the motion was rejected, as Judge Washington adhered to the opinion delivered in the charge, and Judge Peters said, that he had decided as well on that ground, as on the corroborative evidence, arising from the sameness of the documents found in the ship, and those described in the communications to the defendants, when the insurance was effected.

       Also, Seamans v. Loring, 1 Mason 127; Aldrich v. Equitable Safety Ins. Co., 1 W. & M. 272; Bank of South Carolina v. Bicknell, 1 Cliff. 85; Insurance Co. v. Baring, 20 Wall. 159.

       For a report of the case on the motion for a new trial, see 1 W. C. C. 440.