condemnation; and the doctrine of market | might, argumenti gratia, be admitted that the overt is itself unknown to the jus gentium.'

3. A condemnation is produced, but it is wholly unnecessary to dwell on its operation, since a condemnation, in all respects valid as between belligerents, cannot deprive this 664*] court of its power to *restore, when the original taking was in violation of our laws. And, second, the condemnation now exhibited, cannot possibly apply to the property in question, as it will be found, on reference to the dates, that this decree of condemnation was some time after Levy's alleged purchase, and, indeed, only a few days prior to the filing of the libel in this cause. But,

ship-owner possessed. This is very unlike the case of a neutral's claim for freight on belligerent property captured from him by another belligerent. The neutral had a right so to employ his vessel, subject only to the belligerent's right to make the seizure; he, therefore, in such case, takes it cum onere, and must pay the *neutral his freight. The object here, [*666 however, is to transfer the obligation of paying the freight from the illegal captor to the despoiled individual. If the controversy were now wholly between the Portuguese owners of the property and the innocent American shipowner, the claim might deserve some consideration. In this case, the ship-owner is the agent of the captors, or those claiming under them, not of the Portuguese owner, and as such, must look to his employers, and not to the goods; and if, in fact, the illegal captor has paid the freight, he cannot thereby entitle himself to be refunded out of the fruits of his piratical taking. The claim to freight is always con

4. The main point of inquiry regards the claim to freight. We contend that the appellant is responsible to us for the entire value of the hides, as the same is ascertained by the stipulation, together with interest; and that the freight bill, though properly paid by the appellant to the innocent ship-owner, cannot now be deducted by this illegal captor, from the amount stipulated to be paid by him. Waiv-ventional; a claim even to pro rata freight ing all question which might be made, as to arises from some convention, and not from the the power of this court to decree freight in the simple fact of transportation. In this case, no case, on the ground of incidental jurisdiction, consent of the owners to the shipment to Baltiwe insist that the present is not a claim by the more can be implied. Our claim to the propship-owner for his freight, but by the appel-erty is disputed on all points; and if none of lant, to have the same allowed to him out of these is found tenable, but the taking is ascerthis fund, as having been properly paid by him. | tained to be a gross act of piracy, it would be If this court reject the claim of the appellant a strange anomaly, that an honest and lawful to the property, on the ground of its having belligerent must pay freight to a neutral shipbeen illegally captured, and that this infirmity owner, and yet that a piratical captor shall be adheres to the property even in the hands of a exempt from charges voluntarily imposed by bona fidei purchaser, we are at a loss to con- him on the property, and that these shall be ceive how this purchaser can rightfully impose cast on those whom he has endeavored to deany charge or incumbrance whatever upon it. spoil. But when we advert to the real character of 665*] the appellant, and find him *an unworthy claimant, in truth as much so as the captor himself had been, we cannot suppose that he can be entitled to any favor at the hands of this court. He brought this prize property into an American port, without the knowledge or privity of its owner, and surely ought not to claim either compensation or indemnity, for doing that which, as to the other party, is in incitum, and has proved, in fact, extremely prejudicial to him. If this be a claim on the fund, it is only so as regards the innocent owner. No lien can be created by one who has no property, general or special, in the thing. If a mala fidei possessor cannot so mortgage or pledge the property, as that such mortgage or pledge shall be valid against the true proprietor, he is not competent to create any lien, nor to impose any charge or incumbrance whatever. But without pressing this point, we do not think that the appellant is entitled to be subrogated to the rights of the innocent ship-owner, if such right of lien even vested in him. If this claim to freight were one in rem, as well as in personam, and the illegal captors, or those claiming under them, have satisfied the personal obligation, it does not follow that they can now enforce that lien against the fund, which it

3.-2 Wood. Lec. 429; 1 Johns. Cas. 471; Martens on Priv. 44; Moll. de Jure Mar. 57, 60, 68, 85; God. 193; Hob. 79; 7 Wheat. Rep. 490. 1.-8 Wheat. Rep. 108, 167, 174.

5. The court below has, also, manifestly erred in allowing the entire freight bill, as this includes a charge on some lignum-vitæ, which formed no part of that which is owned or demanded by the libelant. We therefore ask at the hands of this court the whole value of the property, as it is ascertained *by the [*667 stipulation, together with interest from its date, so that the claim to freight may be wholly rejected. The ship-owner is, indeed, the petitioner for freight in this case; but he has been since paid, and the claim, in truth, is now at the instance of the captor, who desires to be subrogated to the rights of the ship-owner, and to enforce his lien, if he had one. We have endeavored to show that no such right existed, and that if it ever did, the captor is not entitled to receive the benefit of such lien.

Mr. Winder, contra, argued principally upon the facts, to show that the alleged purchase was bona fide.

Mr. Justice WASHINGTON delivered the opin ion of the court, and after stating the case, proceeded as follows:

The above case presents two questions for the consideration of this court: (1) Whether the court below was correct, in restoring to the Portuguese owner that part of the cargo of the Fanny which was restored. And (2) Whether the freight which was ordered by the court to be paid to the owners of that vessel, ought, in whole or in part, to have been deducted from the appraised value of the hides.

Upon the first question, it is to be observed that

the facts above stated are incontestably proved | cree *of the Circuit Court, so far as it [*670 by the evidence in the cause. That the cap-restores to the libelant the 4,004 hides, or their turing vessel, the New Republicana, was built proceeds, is right, and ought to be affirmed. 668*] at Baltimore, *purchased at that place by citizens of the United States, and there manned and fitted for sea, armed and equipped as a vessel of war, within the waters and jurisdiction of the United States; and with such equipments, left the United States, to cruise against the vessels and property of Spanish and Portuguese subjects on the high seas; and upon such cruise, captured the Don Pedro de Alcantara, with a valuable cargo, belonging to Portuguese subjects, were facts too clearly proved to be questioned; nor were they questioned by the counsel for the claimants. It is established, by evidence equally clear and uncontradicted, that the 4,004 hides which were brought in the Fanny from St. Thomas to Baltimore, upon which the sentence of the court below operated, formed a part of the cargo of the Don Pedro de Alcantara at the time of her capture, and that they were the property of Portuguese subjects.

This, then, is the case of property belonging to the subjects of a friendly power, captured on the high seas by a privateer, owned and commanded by citizens of the United States, fitted and equipped as a vessel of war, within the waters and jurisdiction of the United States; and, according to the uniform decisions of this court in similar cases, as well as in others, where similar equipments have been made with in the waters of the United States by foreigners, the property so illegally captured and brought within our jurisdiction must be restored to the original owners, unless it could be maintained that the sale of it to the claimant devested 669*] those owners of their right to the same. But it is to be remarked, in the first place, that the asserted purchase of these hides by Levy is unsupported by any evidence whatever. He alleges in his claim, that he purchased the hides for a valuable consideration from Souffron & Co. in the regular course of trade; but this allegation is not upheld by any written document, or by the testimony of a single witness. The cause was depending more than two years in the courts below, during all which time it was fully in the power of the claimant, a resident of the Island of St. Thomas, to have proved the reality of this purchase, by the testimony of the vendors, or otherwise, if the fact had been as it was alleged.

But, admitting the truth of the asserted sale to Levy, he was, nevertheless, a purchaser from the agent of a tortious possessor of property to which he had no title whatever, and who, consequently, could transfer none to his vendee. The proceedings in the Vice-Admiralty Court of Margarita, by Comodore Jolly, against the Don Pedro de Alcantara and the small part of her cargo which had not been transhipped at the Five Islands, so far from amounting to a sentence of condemnation, even of the property libeled as prize of war, proceeded upon the ground of a recapture from a non-commissioned privateer, for which the recaptor was rewarded by a liberal salvage, and the residue of the sales of the property was decreed to the Portuguese owners, in case they should claim the same within the period of a year and a day. This court is therefore of opinion that the de

The second question respects the freight, which the decree of the court below ordered to be deducted from the appraised value of the hides; and it is attended by no difficulty but such as arises from the confined and imperfect statement of the facts appearing in this record. That the freight of the lignum-vitæ, which did not belong to the libelants, and against which the proceedings were abandoned, ought not to have been paid out of the proceeds of the hides, is a matter which we think is quite too clear to be disputed; and we think it probable that the mistake was occasioned by an oversight in the judge of the District Court, from his not knowing, or recollecting, when the petition for freight was before him, that the lignum-vitæ had been released from the operation of the libel. The decree, then, must, of course, be reversed; for this reason, and the cause remanded for further proceedings, in order to ascertain and separate the freight upon that article, from that due upon the hides.

But there is, apparently, error in the decree in respect to the whole of the freight, which, it is possible, may be explained and removed by a further examination of this subject in the court below. The petition for freight claims the precise sum of $2,094.50, as the balance acknowledged to be due by the claimant, and the account, signed by him on the 28th of December, 1818, which accompanied the petition, amounted to an acknowledgment that [*671 that sum was then due. The items of that account are, freight on 1,095 barrels of flour, out and home, per charter-party, 5 cases of furniture, 36 bags of corn, and 7 days' demurrage. Below that account is stated the freight due upon the hides and lignum-vitæ, amounting to $1,047.25. It would seem, therefore, as if the freight upon the hides and lignum-vitæ, which arrived in Baltimore some time in January, 1819, was not included in the account signed by the claimant, and if so, it was not claimed to be due, nor required by the petition to be paid. Yet the order of the court was that it should be paid, and it was accordingly deducted from the appraised value of the hides. If the case should turn out to be such as is above supposed, it would seem to warrant the conclusion that the freight upon the hides had been paid by Levy, in which case it ought not to be deducted from their appraised value, unless the reality of the asserted purchase of the hides by Levy should be made to appear to the satisfaction of the court below, without which we are of opinion that he is to be considered as a mala fidei possessor, and, consequently, as not entitled to be re-imbursed the freight so paid, out of the property of the Portuguese owners. on the other hand, it should appear that the claimant was a bona fidei purchaser of the hides, without notice, or that the freight upon them had not been paid by him to the owners of the Fanny, then it was properly deducted.

If,

*DECREE. This cause came on to [*672 be heard, &c. On consideration whereof, it is decreed and ordered that so much of the decree of the said Circuit Court as orders that the claimant pay to the libelant the appraised

The parties are citizens of the same state, but jurisdiction is given to the courts of the United States, by the fact of their claiming title to the land in controversy, under grants from different states, to wit, the states of North Carolina and Tennessee.

value of the hides, in the proceedings men- | appear to have given a decision very different tioned, together with interest and costs of suit, from that actually rendered. But, whatever be, and the same is, hereby affirmed with may be the opinion of this court, independentcosts; subject, however, to such deduction for ly of the record, we are concluded by the bill freight as the said Circuit Court may hereafter of exceptions, and must decide according to direct, to be paid out of said appraised value, those questions which the record presents. as may be hereafter decreed under the further proceedings in this cause. And as to so much of said decree of said Circuit Court as directs the amount of freight to be deducted, agreeably to the previous order of said Circuit Court, the same is hereby reversed and annulled. And it is further ordered that said cause be remanded to the said Circuit Court for further proceedings to be had therein, according to law, for the purpose of ascertain ing, upon further proof, whether the claimant had paid the freight of the hides to the owner of the Fanny; and, if so, whether the claimant was a bona fidei purchaser of said hides, without notice. And if the said court should be satisfied from such further proof, that the said claimant, Nathan Levy, has paid the owner of the Fanny for said freight, or that he was not such bona fidei purchaser, without notice, then with instructions not to allow a deduction of freight from the said appraised value. But if the said claimant was such bona fidei purchaser, without notice, or if said freight had 673*] not been paid by said claimant to the owners of the Fanny, then the freight for the hides, excluding the freight on the lignum-vitæ, to be deducted from the appraised value of said hides.

[LOCAL LAW.]

DANFORTH v. WEAR.

The acts of Assembly of North Carolina, passed between the years 1783 and 1789, invalidate all entries, surveys, and grants, of land within the Indian territory, which now forms a part of the territory of the state of Tennessee. But they do not avoid entries commencing without the Indian boundary, and running into it, so far as respects that portion of the land situate without their territory.

The act of North Carolina, of 1784, authorizing the removing of warrants which had been located upon lands previously taken up, so as to place them upon vacant lands, did not repeal, by implication, the previously existing laws, which prohibited surveys of land within the Indian boundary. The lands to which such removals are made,

must be lands previously subjected to entry and

survey.

nessee.

This cause was argued at the last term, and again argued at the present term, by the At torney-General and Mr. Swann' for the plaintiff, and by Mr. Williams for the defendant.

674*] *Mr. Justice JOHNSON delivered the opinion of the court:

This is one of those cases which not unfrequently occur, in which, for want of the scrutinizing eye of the party interested to maintain a judgment below, the court there is made to

1.-They cited 2 Tenn. Rep. 157; N. C. Rep. in Confer. 440; 1 Tenn. Rep. 30.

2.-He cited Preston v. Browder, 1 Wheat. Rep.

115; Danforth v. Thomas, Id. 155.

The facts stated in the bill of exceptions, taken in connection with the laws of the two states and public treaties, sufficiently exhibit to this court, that the grant from the state of North Carolina, under which the plaintiff made title, although commencing in, and embracing, a tract of country over which the Indian title had been extinguished, yet extended into, and included, a large body of land over which the Indian title existed at the time of the survey, but has since been extinguished. Had the case, then, set forth that the land covered by the defendant's grant lay within the country which was subject to the Indian title, at the time of Danforth's grant, and bore date subsequent to the extinguishment of the Indian title, it would, *probably, have [*675 exhibited a true view of the case which the court below was called on to decide.

But, so far from exhibiting this state of the case, the facts admitted, not only do not confine the controversy to the tract of country that lay within the Indian boundary, but, taken in their literal meaning, expressly admit the contrary.

The words of the admission are, "that the defendant was in possession of the land claimed by the plaintiff.' And when we come to inquire what land the plaintiff claims in the suit, we find it to be the whole 100,000 acres, "the beginning corner of which, and a portion of the land covered thereby, lay in a tract of country to which the Indian title had been extinguished, prior to making the survey and issuing the grant.

Here, then, we have the parties, contrary to all the probable truth of the case, contending about a title to land lying without the Indian boundary at the time it was surveyed for the plaintiff in ejectment.

But we must take the case as we find it on the record, and decide accordingly.

It appears, then, that the plaintiff's grant mitted to be read to the jury. This rejection was rejected in the court below, and not percould only be sustained upon the ground that it was wholly void, or wholly inadmissible in that cause. For if the grant was good but for an acre of the land claimed in the action, the court could not have withheld it from the jury.

As to lands surveyed within the Indian consider all *such surveys and grants [*676 boundary, this court has never hesitated to as wholly void; but as the total rejection of the grant, according to the case stated, goes to its validity as to that part of the land also which lay without the Indian boundary, there must be found some other ground for sustaining the decision, than that which invalidates surveys executed in the Indian territory.

But the present grant commences in a tract of country over which the Indian title was extinct; and whatever might be the state of right, were the beginning corner within that boundary, and a portion of the land beyond it, we see nothing in the laws of North Carolina or Tennessee to avoid a grant in the whole, when it commences legally, and only covers in part the lands on which surveys are prohibited. 678*] For that part, therefore, which *lies without the boundary, the grant must be held 88. valid, and this alone entitles the plaintiff to a reversal. But as the cause must be again tried below, and the question on its validity as to the residue, as presented by the bill of exceptions, has been argued fully, and must arise again, we will now consider it.

The points made by the plaintiff's counsel are stated by himself thus:

1. That the state of North Carolina had a right to issue the grant in question, and the court erred in not suffering it to be read.

referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the sureties, held, that the surety was discharged from his responsibility for money subsequently collected by his principal.

made, without the consent of Stewart, discharged him from any responsibility for the money so subsequently collected by Ustick.

Mr. Wood, for the plaintiff, admitted the general doctrine that where the contract is anis an end of the guaranty. So, if the contract nulled without the assent of the surety, there is, in any material respect, changed by the conthe surety or not) in respect to that part of it tracting parties (whether advantageously for to which the guaranty extends, the surety is discharged; for he may, then, well say, non hæc in fadera veni. But, if a change is made in the original contract, by the contracting parties, in a part of the contract to which the

HIS was a case certified from the Circuit Court for the District of New Jersey, upon a certificate of a division of opinion of the judges of that court. It was an action of debt upon bond, and the material facts disclosed in the pleadings were, that the plaintiff, Ephraim Miller, being collector of the direct taxes and internal duties for the fifth collection district of New Jersey, by an instrument of appointment,un der seal, and pursuant to law, appointed Stephen C. Ustick his deputy-collector, for eight town681*] ships within his *district. Upon that oc-uaranty does not extend, such change will not discharge the surety, unless it disadvantageouscasion, the defendant, Thomas Stewart, and certain other persons, as sureties, executed a writy, affected the other part of the contract to ing obligatory, with Ustick, to Miller, in the the defendant was surety to the plaintiffs, for which the guaranty does extend. Thus, where penalty of $14,000, upon the following con- the performance of duties by a clerk in their dition, viz.: The condition of the foregoing banking house, a change of partners was held obligation is such, whereas Ephraim Miller, not to discharge the surety, because, though Esq., collector, as aforesaid, hath, by authority such change had an important bearing upon vested in him by the laws of the United States, the establishment, it did not come within the appointed the said Stephen B. Ustick deputy scope of the guaranty. A mere diminution of collector of direct taxes and internal duties, in that part of the contract to which the [*683 the fifth collection district of New Jersey, for the townships of Nottingham, Chesterfield, guaranty extends, as a release of part, would not discharge the surety from the part remainMansfield, Springfield, New Hanover, Washington, Little Egg Harbor, and Burlington, ining, it being a part of the thing guarantied, the county of Burlington; now, therefore, if the said Stephen C. Ustick has truly and faithfully discharged, and shall continue truly and faithfully to discharge, the duties of the said appointment, according to law, and shall particularly faithfully collect and pay, according to law, all money assessed upon said townships, then the above obligation to be void, and otherwise, shall abide and remain in full force and

virtue." After the execution of this bond, and

before Ustick had, in any manner, acted under this appointment, or collected or received any moneys under the same, Miller, with the assent of Ustick, but without the assent or knowledge of the defendant, Stewart, altered the same instrument of appointment, by interlining in it another township, called, Willingborough," thereby making it an appointment for nine instead of eight townships; and under the appointment, so altered, Ustick received, 682*] within the original *eight townships, certain moneys, as taxes, which he omitted to account for, and this omission was the breach stated in the declaration. The question for the opinion of the court, upon the special pleadings and demurrer, was, whether the alteration so

NOTE.-Principal and surety.-The surety is bound to the extent, and in the manner, stated in his obligation, and no further. He has a right to stand on the very terms of his contract. Any variation, even for his benefit, made without his assent, is fatal, and discharges him. U. S. v. Boyd, 15 Pet. 187; Leggett v. Humphreys, 21 How. 66; U. S. v. Tillotson, 1 Paine, 305; Smith v. U. S., 2 Wall. 219: McMicken v. Webb, 6 How. 292; O'Neale v. Long, 4 Craneh, 60; 1 Cranch, C. C. 233.

Any agreement between the creditor and princi pal debtor which varies essentially the terms of their contract by extention of time or otherwise, without the assent of the surety, will discharge the latter from responsibility. Sprigg v. Bk. of Mt. Pleasant, 14 Pet. 201; Hopkirk v. McConico, 1 Brock. Marsh. 220; U. S. v. Hillegas, 3 Wash. C. C.70. Any agreement between the holder and drawer of a bill, for delay, or in any manner changing the

|

|

1

tinet minus; the surety, in such a case, could though not the whole. Omne majus in se connot say that he might be prejudiced by the diminution, for it is settled law that a part payment of the debt is for the benefit of the oblifore, it cannot be pleaded as an accord and satand prejudicial to the obligee, and, there

gor,

isfaction.?

appointment as deputy-collector, over the first eight townships. If there was a surrender, it must have been either in fact, or in law; that is, implied in the alteration of the instrument. There was no such surrender in fact; and the alteration of an instrument with consent of parties, does not, in law, imply such a surren

1. There was no surrender by Ustick of his

der. There are no authorities to warrant the render. On the contrary, they all say, an alposition that such an alteration implies a surteration of an instrument, with consent, does not vitiate it. In Pagot v. Pagot, when blanks

1.-Barclay v. Lucas, 1 T. R. 291.

2.-Johnson v. Branna, 5 Johns. Rep. 270. 3.-Touch v. Clay, 2 Lev. 35; Shep. Touch. 68; Smith v. Crooker, 6 Mass. Rep. 539. 4.-2 Ch. Rep. 187.

original contract, discharges the indorser. McLemore v. Powell, 12 Wheat. 544; Bk. of U. S. v. Hatch, 6 Pet. 250; S. C. 1 McLean, 90; Sevonth W. Bk. v. Hanrick, 2 Story, C. C. 416; Fuller v. Milford, 2 McLean, 74; Morgan v. Tipton, 3 McLean 339, Low v. Underhill, 3 McLean, 376; Cooper v. Gibbs, 4 McLean, 396; Cope v. Hunt, 4 Cranch, C. C. 293.

But must be a binding agreement. U. S. v. Nicholl, 12 Wheat. 505; McLemore v. Powell, 12 Wheat. 554.

Mere delay, or promise of delay, without consideration, not enough. McLemore v. Powell, 12 Wheat. 554; Creath v. Sims, 5 How. 192; Sprigg v. Bank of Mt. Pleasant, 14 Pet. 201; Hunt v. U. S., 1 Gall. 32; Dennis v. Rider, 2 McLean. 451.

As to responsibility of sureties on official bonds and when discharged, see note to The United States v. Giles, 9 Cranch, 212.