Robert Trimble

“ In applying its own principles and practice in the action of ejectment, as might well be done to this case, has the Court misconstrued the Act of Congress, in deciding that the grant of the plaintiff, emanating upon the donation certificate of the Board of Commissioners, west of Pearl river, set forth in the record, would overreach the defendant's grant, and should prevail against it in the action of ejectment? ”

“ We cannot try their validity, and decide upon their efficacy, by affirming they confer upon the appellants an equitable right, without manifest prejudice to the rights of those not before the Court. The complainants can derive no claim in equity to the survey, under, or through Langham's executory contracts with the Beards, unless these contracts be such as ought to be decreed against them specifically by a Court of equity. How can a Court of equity decide that these contracts ought to be specifically decreed, without hearing the parties to them? ”

“ The Africans to be delivered to the United States, are neither slaves in contemplation of law, nor prisoners of war, nor persons charged with crimes. The compensations allowed by the laws of the State to sheriffs and jailors, in these cases, do not, therefore, furnish any positive rule of law or right, as to the compensation which ought to be allowed the marshal in the peculiar circumstances attending these Africans. ”

“ We must take the declaration, including the amendment, as we find it on the record. Nor can we interfere, because the Court below did not, as it ought, require the costs formerly accrued, to be paid as a condition of the amendment.
The authorities cited by the learned counsel, do not, we think, support his last position;-that the judgment is erroneous, because a plea was not filed to the new count. They prove, unquestionably, that upon the amendment being made to the declaration, by adding a count, the defendants had a right to plead de novo; they prove nothing more. ”

“ The construction of deeds belongs to the province of the Court; the materiality of an alteration in a deed, is a question of construction; and in this case the Court committed an error by giving an instruction to the jury, which imposed on them a difficult question of construction, upon which the jury ought to have been enlightened by the decision of the Court. ”

“ If a clerk may, after a deed, together with the acknowledgment or probate thereof have been committed to record, under colour of amendment, add any thing to the record of the acknowledgment, we can see no just reason why he may not also subtract from it. ”

“ We do not think so. In the very doubtful state of the question, where the state boundary would run, when ascertained by public authority, the various conjectures and opinions then existing on the subject, the near proximity of the land to the line, as afterwards established, no inference unfavourable to the fairness of Connor's conduct can justly be drawn from Hibbits' expectation at the time of the contract that the land was not in Tennessee, unless it were shown that Connor, by his representations, superinduced that expectation. ”

“ From the best information I can obtain, it seems pretty certain that if we foreclose the mortgage given to the United States by General Robert Swartwout, and expose the property to sale, subject to a previous mortgage given to Mr. Costers we shall lose the whole, or nearly all of our debt, this property being our only reliance, if the sureties should be discharged by due course of law from their responsibility for the payment of it. ”

“ He may be the only surviving partner, the firm having ceased, by the death of the other members. But if the firm was continuing, Charles W. Karthaus, while he must be admitted to be perfectly competent to submit to reference his own interests in the firm, could not, by his submission, bind his partners. He might bind himself to perform whatever the award directed the firm of which he was a member, to do ”

“ The paper was offered in evidence, in connexion with the three letters from the defendant to the plaintiff, as a component part of the evidence, to prove the defendant's agreement to let the farm to the plaintiff, and the terms of that agreement. The clerk certifies, that the letters referred to, are not on file in the cause, and they are not transcribed into the record. In their absence, if there be a supposable case, in which they, and the paper called a copy, were legitimate evidence, regarding that paper, as an original, and not as a mere copy, it must be so regarded. ”

“ We can discover no other law of North Carolina, or of Tennessee, which subjects the reservation about any of the licks deemed fit for manufacturing salt, to appropriation by entry and survey, as vacant land. ”

“ By the 25th section of the judiciary act, made in pursuance of the constitution, it is provided, 'That a final judgment or decree, in any suit in the highest Court of law or equity of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ”

“ At most, a demurrer to only so much of the bill as stated and relied on the deed, could have been maintained for want of an affidavit of its loss.
The second preliminary objection to the proceedings and decree, is the want of proper parties.
It has been argued, for the appellants, that Abraham Garrison was a necessary party; and, that as the complainants claim through him by an executory contract; he ought to have been before the Court before any decree could be made against the defendants; who also claim through and under him, by a subsequent conveyance of the legal title. ”

“ Courts of justice are not obliged to modify the propositions submitted by counsel, so as to make them fit the case. If they do not fit, that is enough to authorize their rejection. We have already said, the evidence, taken all together, was sufficient to prove title in the lessors of the plaintiff. If any part of it was incomplete, the Court might, on a general motion to exclude the whole, have excluded such parts; but the Court was not obliged to do so. There is therefore no error in the decision of the Circuit Court, overruling the motion of the defendants ”

“ If the defendants had held under a conveyance executed by Jesse Spencer, in obedience to the decree, their title deed, although not recorded, would, by the terms of the statute, prevail against the plaintiff's prior unrecorded deed. A deed not being recorded, avoids it as against subsequent, but not as against prior purchasers. By the laws of the state of Ohio, the decree obtained by the defendants, clothes them with the legal title in as ample a manner as a deed. They are purchasers for valuable consideration, without notice ”

“ That where the ict expressly directs a defaulting officer to be recalled at the expiration of six months from the time of his default, his sureties are not discharged, but remain liable for his defaults thereafter, until he is actually recalled.
If the second instruction given to the jury was intended to inform them that the defendant, as surety of Swartwout, was not legally responsible for money placed by the government in his hands, after the legal termination of his office, it was unquestionably correct; and this is the sense in which we suppose the Court meant to be under stood. ”

“ It must occur to every one, that an offer and request upon the land, in the absence of the defendant, would be a very idle and useless ceremony, and that an offer and request to him, personally, was much better calculated to enable him to perform his duty, and fulfil his agreement. ”

“ Whatever singularity may, at first blush, appear in this clause of warranty, it vanishes when the state of the country, and the titles in it, are understood. The 5,000 acre entry of Hibbits, and the land given in exchange for it, in the contract of 1817, at that time all lay in the Indian country, and the Indian title thereon had not been extinguished. ”

“ It seems to result necessarily from these provisions, that the commissioners must first determine what were the proper subjects of reservation, and having determined that a given salt lick or spring came within the provisions of the law, the power and duty of laying off by survey the 640 acres reserved, and to be avoided, around the lick, seems necessarily and irresistibly to result to the commissioners, in all cases where they might deem it necessary to do so, in order to enable them to lay off the lands for the officers and soldiers, so as to avoid these reservations. ”

“ In order to overturn the award, it is not enough that he may have had different and distinct interests in his individual and in his partnership character. It is a settled rule, in the construction of awards, that no intendment shall be indulged, to overturn an award, but every reasonable intendment shall be allowed, to uphold it. ”

“ Until his certificate of the acknowledgment of Elliott and wife was recorded, it was, in its nature, but an act in pais, and alterable at the pleasure of the officer. But the authority of the clerk to make and record a certificate of the acknowledgment of the deed, was functus officio, as soon as the record was made. By the exertion of his authority, the authority itself became exhausted. The act had become matter of record, fixed, permanent, and unalterable; and the remaining powers and duty of the clerk were only to keep, and preserve the record safely. ”

“ We are of opinion it ought to be certified to the Circuit Court, that all the Africans captured in the Antelope, except those directed to be delivered to the Spanish claimants, should be decreed to be delivered to the United States, absolutely and unconditionally, without the precedent payment of expenses. ”

“ If an individual had inhabited and cultivated a tract of land every day in the year 1797, still, according to the letter of this section, he was not entitled to the bounty of the government, because the Spanish troops had not evacuated the territory any day of that year, but some day of the next year ”

“ We can re-examine so much, and such parts of it only, as come within some one or other of the classes of questions enumerated in the act of Congress, and so much of the case as must necessarily be decided to arrive at such question. ”

“ It is, by no means, a strange supposition, to presume that such was the aspect of the case; for it is perfectly consistent with a known and familiar manner of transacting business, where the parties reside at a distance, or where, for other causes, the mode of contracting, by correspondence, is resorted to. It is objected, that the declaration shows no cause of action; and it is insisted the judgment shall be reversed, for that cause. The declaration is very loosely drawn, and a great deal of matter is crowded into it, which is impertinent, or, at most, only in aggravation of damages. ”

“ It is not necessary to decide whether the land in controversy would, or would not, have been protected from individual appropriation by being actually laid off and disposed of as town lots, beyond the quantity of two hundred acres, as we are all of opinion it was so protected by being within the French lick reservation, as laid off. ”

“ Hibbits insists, that by the agreement and understanding of the parties, the assignment was intended as a mortgage or security for the debt, together with the advance to be made to the government; but Connor, in his answer, expressly denies such was the character of the agreement, and insists it was, that Connor should be proprietor of the warrant, so far as these sums would go, at the rate of sixty pounds per thousand acres, and that the residue should be held by him in trust for Hibbits. ”

“ The complainants had a right to a discovery, upon the ground of notice, against the defendants; and if notice should be brought home to them, the complainants had a right to relief, by a decree quieting the title, &c.
Again: If the complainants should fail, as we think they have failed, to prove, by competent and satisfactory evidence, the former existence, execution, and contents of a formal deed of conveyance, sufficient to pass the legal title; we perceive no reason why they might not rely upon the executory contract contained in the receipt ”

“ Thus, if a submission be of all actions, real and personal, and the award be only of actions personal, the award is good-for it shall be presumed no actions real were depending between the parties. Kyd, 72, and Baspole's case, before cited.
So in this case, although the submission speaks, in general terms, of disputes, differences, and controversies, with Charles W. Karthaus, acting for his late house of C. W. Karthaus & Co. and for himself; it shall not be intended there were any controversies with C. W. Karthaus, individually, other than those decided by the arbitrators. ”