1. Under the Embargo Act of the
25th April, 1808, c. 170. [lxvi.]
if a vessel, not actually arriving
at her port of original destina-
tion, excites an honest suspi-
cion in the mind of the Collec-
tor, that her demand of a per-
mit to land the cargo was mere-
ly colourable, this is not a ter-
mination of the voyage so as to
preclude the right of detention.
Otis v. Walter,
583
2. Under what circumstances the
Collector has a right. to land
of the vessel thus de-
Court of competent jurisdiction
is conclusive wherever the
same matter is again brought in
controversy. Hopkins v. Lee,
109. 113
2. But the rule does not apply to
points which come only colla-
terally under consideration, or
are only incidentally consider-
ed, or can only be argumenta-
tively inferred from the de-
ib.
3. A replication to a plea in Chan-
cery, is an admission of its suffi-
ciency in point of equity, and
all that the defendant has to do,
is to prove it in point of fact.
Hughes v. Blake, 453.472
4. Effect of length of time in rais-
ing a legal and equitable pre-
sumption of the extinguishment
of a trust, payment of a debt,
&c. Prevost v. Gratz, 481. 504
5. A parol exchange of lands, or
parol evidence, that a convey-
ance should operate as an ex-
change, will not convey any es-
tate or interest in lands. Clark
v. Graham,
577
See BILLS OF EXCHANGE AND PRO-
MISSORY NOTES.
1. Where, in a policy of insurance,
a technical total loss is asserted
as the ground of recovery, the
loss must be occasioned by the
immediate operation of some of
the perils insured against, and
it is not sufficient that the voy-
age be abandoned for fear of
the operation of the peril.
Smith v. The Universal Ins. Co.
2. The insurers do not undertake,
that the voyage shall be per-
formed without delay, or that
the perils insured against shall
not occur; they undertake on-
ly for losses sustained by those
perils; and if any peril does
begin to act upon the subject,
yet if it be removed before any
loss takes place, and the voyage
is not thereby broken up, but
is, or may be, resumed, the in-
sured cannot abandon for a to-
tal loss.
ib.
3. Insurance on munitions of war,
la-
den on board a neutral vessel,
on a voyage from New-York,
to and at a port or ports, place
or places, in the Gulph of Mex-
ico, from the Balize to Cam-
peachy, both inclusive, and
from either back to New-York,
&c. with a memorandum, that
the insurers should be free from
any loss arising from illicit or
prohibited trade. The goods
insured were prohibited from
being imported into the ports of
New Spain, in possession of the
Royalists, by the laws of Old
Spain, but were permitted to be
introduced into such ports as
were in possession of the insur-
gents. The vessel and cargo
arrived off a place in possession
of the patriot General Mina,
and the master made an agree-
ment to sell the cargo to him,
deliverable from time to time,
as he should want it, at St. An-
der. But before the cargo
could be delivered, the vessel
was chased off by Spanish arm-
ed ships, and after making seve-
ral attempts to return, was com-
pelled to proceed to the Balize
for repairs; after which she
again approached the coast, but
found it still in possession of the
Royalists, General Mina baving
retired into the interior. The
objects of the voyage being thes
defeated, the vessel returned to
New-York with the original
cargo on board; and the insu
red then abandoned to the un-
derwriters, not having before
had information of the breaking
up of the voyage. Held, that
the insured were not entitled to
recover as for a total loss of the
it.
voyage.
4. In a claim for a technical total
loss, the loss of the voyage must
be occasioned by the imme-
diate operation of a peril insu
red against.
ib. 185
5. If a peril begins to act upon
subject, yet if it be removed be-
fore any loss takes place, and
the voyage is not thereby bro-
ken up, but is or may be resu
med, the insured cannot aban-
don for a total loss.
diciary act of 1802, c. 291.
[xxi.] United States v. Daniel,
542
3. A State Court cannot issue a
mandamus to an officer of the
United States. M'Clung v. Sil-
liman,
598
See CONSTITUTIONAL LAW, 4, 5. 6.
PRACTICE, 2, 3.
See CHANCERY, 5, 6, 7, 8.
1. The Circuit Court for the Dis-
rict of Columbia has authority
to adjourn to a distant day, and
the adjourned session is consi-
dered as the same term. Me-
chanics' Bank of Alexandria v.
Withers,
2. Where the regular term began
on the 3d Monday in April, and
the Court continued to sit, de
die in diem, until the 16th of
May, when it adjourned to the
4th Monday of June; held, that
a defendant, against whom an
office judgment had been enter-
ed on the 16th of May, had a
right, under the laws and prac-
tice of Virginia, to appear at
the adjourned session, and have
the default set aside, on giving
special bail, and pleading issua-
bly.
ib.
3. Under the act of Assembly of
Virginia, the defendant may
enter special bail, and defend
the suit at any time before the
entering up of judgment upon
a writ of inquiry executed; and
the appearance of the 'defend-
ant, or the entry of special
bail, before such judgment, dis-
charges the appearance bail.
Bartle v. Coleman,
475
4. If the defendant does not ap-
pear, or give special bail, the
appearance bail may defend the
suit, and is liable to the same
judgment as the defendant
would have been liable to; but
the defendant cannot appear
and consent to a reference, the
report and judgment on which
is to bind the appearance bail
as well as himself. Such a
joint judgment is erroneous,
and will be reversed as to
both.
ib.
5. The third section of the act of
Congress, of March 30th, 1803,
for the relief of insolvent debt-
ors in the District of Columbia,
does not create any express or
implied exception to the ope-
ration of the statute of limita-
tions, by making the insolvent
a trustee for his creditors, in
respect to his future property,
or by making any demand, in-
cluded in the schedule of his
debts, a debt of record. Bowie
v. Henderson,
6. The including of a demand in
the schedule of the insolvent's
debts, is sufficient evidence to
sustain an issue on a replication
of a new promise to the plea of
the statute of limitations, if the
period of limitation has not
elapsed after the date of the
schedule.
ib.
7. The decision of this Court, in
Massie v. Watts, 6 Cranch, 148.
8. The rule applied in equity to
the relief of bona fide pur-
chasers without notice, is not
applicable to the case of purcha-
sers of military land warrants
under the laws of Virginia. ib.
9. Such purchasers are considered
as affected with notice by the
record of the entry, and also of
the survey; and subsequent
purchasers are considered as
acquiring the interest of the
person making the entry : SO
that purchasers under conflict-
ing entries are considered
as purchasing under distinct
rights, in which case the rule,
as to innocent purchasers, does
not apply.
10. The principle, that only par-
ties, or privies, or purchasers
pedente lite, are bound by a de-
cree in equity, how applied to
this case.
11. The surveys actually made on
the military land warrants of
Virginia, have not the force of
judicial acts, or of acts done by
the deputations of officers as
general agents of the continen-
tal officers.
ib.
12. A power to convey lands must
possess the same requisites, and
observe the same solemnities,
as are necessary in a deed di-
rectly conveying the lands.
Clark v.
Graham,
13. A title to lands can only be ac-
quired and lost according to the
laws of the State in which they
are situate.
ib.
14 The laws of Ohio require all
deeds of land to be executed
in the presence of two wit-
nesses, and a deed executed in
the presence of one witness
only is void.
ib.
18 In a case of doubtful construction,
the claim of the party in actual
possession ought to be main-
tained, especially where it has
been upheld by the decisions of
the State tribunals.
ib.
The power given to the Corpo-
ration of Georgetown, by the
act of Maryland, of November,
1797, c. 56. to graduate the
streets of that City, is a con-
tinuing power, and the Corpo-
ration may from time to time
alter the graduations so made.
Goszler v the Corporation of
Georgetown,
593
The ordinance of May, 1799,
by which the Corporation of
Georgetown first exercised the
power of graduating the streets,
is not in the nature of a com-
pact, and may be altered by the
Corporation.
ib.
21. Under the laws in relation to
the non-payment of taxes, must
be in strict pursuance of the
law under which it is made, or
no title is conveyed. Thatcher
v. Powell,
23. It is essential to the validity of
the sale of lands for taxes, un-
der the laws of Tennessee, that
it should appear on the record of
the Court, by which the order
of sale is made, that the Sheriff
had returned that there were
no goods and chattels of the de-
linquent proprietor, out of
which the taxes could be made.
ib.
24. The publications which are re-
quired by law.to be made, sub-
sequent to the Sheriff's return,
and previous to the order of
sale, are indispensable prelimi-
naries to a valid order of sale. ib.
25. In summary proceedings, where
a Court exercises an extraor-
dinary power under a special
statute, which prescribes its
course, that course ought to be
strictly pursued, and the facts
which give jurisdiction, ought
to appear on the face of the re-
cord. Otherwise, the proceed-
ings are not merely voidable,
but absolutely void, as being
coram non judice.
ib.
26. In construing local statutes re-
specting real property, this
Court is governed by the deci-.
sions of the State tribunals. ib.
27. As by the laws of Louisiana,
questions of fact in civil cases
are tried by the Court, unless
either of the parties demand a-
jury; in an action of debt on a
judgment, the interest on the
original judgment may be com-
puted, and make part of the
judgment in Louisiana, without
a writ of inquiry and the inter-
ventions of a jury. Mayhew v.
Thatcher,
2. A decree of the highest Court
of Equity of a State, affirming
the decretal order of an inferior
Court of Equity of the same
State, refusing to dissolve an
injunction granted on the filing
of the bill, is not a final decree
within the 25th section of the
judiciary act of 1789, c. 20.
from which an appeal lies to
this Court. Gibbons v. Ogden,
448
3. In order to maintain a suit in
the Circuit Court, the jurisdic-
tion must appear on the record;
as if the suit is between citi-
zens of different States, the ci-
tizenship of the respective par-
ties must be set forth. Sullivan
v. The Fulton Steam-Boat Com-
pany,
450
4. An admiralty suit, where an ap-
peal has been taken from the
Circuit Court to this Court, but
not prosecuted, will be dis-
missed, upon producing a certi-
ficate from the Court below,
that the appeal has been taken,
and not prosecuted. The Jon-
quille,
452
5. The defendant's denial, in his
answer in support of his plea,
is conclusive, unless contra-
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