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Adversary Possession of Lands.

The

the performance of his contract, were considered | be presumed in favour of such a naked possesevidence that he did not hold in hostility, but in sion; but that when a party entered under a title ubordination to the rights of the crown. Fisher adverse to the plaintiff, it was an ouster of, and v. Harnden, 1 Paine's C. C. R. 55. an adverse possession to the true owner. doctrines recognised by the supreme court are in harmony with those established by the authority of other courts, especially by the court of Kentucky. Ibid.

25. South Carolina.-When a tenant disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse, and as open to the action of his landlord as possession acquired originally by wrong. The act is conclusive on the tenant. He cannot revoke his disclaimer and adverse claim, so as to protect himself during the unexpired time of the lease. He is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and each party is to stand upon his right. Willison v. Watkins, 3 Peters, 43.

26. If the tenant disclaims the tenure, claims the fee adversely in right of a third person, or in his own right, or attorns to another, his possession then becomes a tortious one, by the forfeiture of his right; and the landlord's right of entry is complete, and he may sue at any time within the period of limitation; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that he had no right of entry. By bringing his ejectment, he disclaims the tenancy and goes for the forfeiture. It shall not be permitted to the landlord to thus admit that there is no tenure subsisting between him and the tenant which can protect his possession from this adversary suit, and at the same time recover on the ground of there being a tenure so strong as that he cannot set up his adversary possession. Ibid. 40.

27. Vermont.-In order to avail himself of the bar of the statute of limitations of Vermont, the party setting up possession as a defence in an action of ejectment, must show that there had been an actual ouster by some person entering into possession adversely to the plaintiffs. Propagation Society v. Town of Pawlet, 4 Peters, 480. 28. Kentucky.-If a mere trespasser, without any claim or pretence of title, enters into land, and holds the same adversely to the title of the owner, it is an ouster or disseisin of the owner. But in such case the possession of the trespasser is bounded by his actual occupancy, and consequently the owner is not disseised except as to the portion so occupied. Lessee of Clarke v. Courtney, 5 Peters, 319.

29. Where a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed to be disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualifications. For if the true owner be at the same time in possession of part of the land, claiming title to the whole, then his seisin extends, by construction of law, to all the land which is not in the actual possession or occupancy, by enclosure or otherwise, of the party so claiming under a defective deed or title. Ibid. 30. In the case of The Society for propagating the Gospel v. The Town of Pawlet, 4 Peters, 480, the court held, that where a party entered as a mere trespasser, without title, no ouster could VOL. I-10

31. Pennsylvania.-An unmolested possession for thirty years would authorize the presumption of a grant. Under peculiar circumstances, a grant has been presumed from a possession less than the number of years required to bar the action of ejectment by the statute of limitations. Barclay v. Howell's Lessee, 6 Peters, 498.

32. Kentucky.-In the case of Willison v. Watkins, 3 Peters, 44, this court considered and declared the law to be settled, that a purchase by a tenant of an adverse title, claiming under or attorning to it, or any disclaimer of tenure, with the knowledge of the landlord, was a forfeiture of his term; that his possession became so far adverse, that the act of limitations would begin to run in his favour from the time of such forfeiture; and the landlord could sustain an ejectment against him without notice to quit, at any time before the period prescribed by the statute had expired, by the mere force of the tenure, without any other evidence than the proof of the tenancy; but that the tenant could in no case contest the right of his landlord to possession, or defend himself by any claim or title adverse to him, during the time which the statute has to run. If the landlord, under such circumstances, suffers the time prescribed by the statute of limitations to run out without making an entry or bringing a suit, each party may stand upon his right; but, until then, the possession of the tenant is the possession of the landlord. Peyton v. Stith, 5 Peters, 485.

33. Kentucky.-The assumption that there can be no possession to defeat an adverse title, except in one or other of these ways, that is, by an actual residence or enclosure, is a doctrine wholly irreconcilable with principle and authority. Nothing can be more clear than that a fence is not indispensable to constitute possession of a tract of land. The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts, which are equally evincive of such an intention of asserting such ownership and possession; such as entering upon land and making improvements thereon, raising a crop of corn, felling and selling the trees thereon, under colour of title. Ellicott v. Pearl, 10 Peters, 414.

34. An entry into possession of a tract of land, under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in any adverse possession; although there may be no fence or enclosure round the ambit of the tract, and an actual residence only on a part of it. To constitute actual possession, it is not necessary that there should be any fence or enclosure of the land. Ibid.

35. Where there has been an entry on land under colour of title by deed, the possession is

Affidavit.

deemed to extend to the bounds of that deed; | United States. United States v. Bailey, 9 Peters, although the actual settlement and improvements 238. were on a small parcel only of the tract. In such a case, where there is no adverse possession, the law construes the entry to be co-extensive with the grant to the party, upon the ground that it is his clear intention to assert such possession. Ibid.

36. The demandants in a writ of right claimed adversely to all the tenants, upon a title independent and distinct from theirs. The tenants all claimed under an adverse title by deed for seven thousand acres; that is, under a title common to them all. The demandants could not recover any of the tract in controversy, unless they were seised thereof within thirty years, the period prescribed by the statute of limitations for writs of right. If, therefore, there had been thirty years' adverse possession of the particular tract in controversy, by any of the tenants, the demandants failed in their suit, and were debarred from any recovery. Ibid.

37. The court instructed the jury, that if they should find that the patent for the land, under which the title of the tenants was derived, did not cover all the land, yet, if they find from the evidence that the tenants, or any of them, or those claiming under them, have had possession of the land in contest for thirty years next before the commencement of the demandants' suit, they must find for the tenants. This was correct. Ibid.

AFFIDAVIT.

1. The affidavit of the party himself, that his impression is, that he tore up the paper containing the contract, after it had been carried into execution, believing it of no further consequence, and that if he did not tear it up, it has become lost or mislaid, and that he has searched for it among his papers repeatedly and cannot find it, furnishes a sufficient ground for the introduction of secondary evidence. Riggs v. Tayloe, 9 Wheat. 483; 5 Cond. Rep. 645.

2. The affidavit of a party to a cause, offered to establish the loss of an original contract, in order to let in secondary evidence of its contents, is admissible. If this were not so, the loss of a written contract, the contents of which are well known to others, or a copy of which could be proved, would amount to a complete loss of the rights of the party, at least in a court of common law. Tayloe v. Riggs, 1 Peters, 591.

3. The plaintiff was admitted to amend his affidavit, and being sworn at the instance of the defendant, he was permitted to state that a particular item of his claim had not been passed upon by arbitrators who had examined the account. Ketland v. The Adm'r. of Lobering, 2 Wash. C. C. R. 201.

4. Affidavits sworn to before a state magistrate, are lawfully taken in cases in which, by the regulations of the treasury department, they were received as evidence of claims on the

5. If in making such an affidavit, the affiant swears falsely, he is liable to be punished in a prosecution instituted by the United States, under the third section of the act of congress of March 1, 1823, relative to false swearing, touching the expenditure of public money, or in support of any claim on the United States. Ibid.

6. It is a sound rule, that no man can be a witness in his own cause; but many collateral questions arise in the progress of a cause, to which the rule does not apply. Questions which do not involve the matter in controversy, but matter which is auxiliary to the trial, and which facilitates the preparation for it, often depend on the oath of the party. An affidavit of the materiality of a witness, for the purpose of obtaining a continuance, a commission to take his deposition, or an affidavit of his inability to attend, is usually made by the party, and received without objection. On many incidental questions, which are addressed to the court, and do not affect the issue to be tried by the jury, the affidavit of the party is received. Ibid. 596.

7. The testimony which establishes the loss of a paper is addressed to the court, and does not relate to the contents of the paper. It is a fact which may be important, as letting the party in to prove the justice of the cause, but does not itself prove any thing in the cause. Ibid. 597.

8. It is sufficient for one party to suggest that the other is in possession of a paper, which he has, under the act of congress, given him notice to produce at the trial, without offering other proof of the fact; and the party so called upon must discharge himself of the consequences of not producing it, by affidavit, or other proof, that he has it not in his power to produce it. Hylton v. Brown, 1 Wash. C. C. R. 298.

9. When an affidavit purports to be taken before an individual, who calls himself a magistrate, and a certificate is produced from the governor, certifying that a person of that name is a magistrate, the paper is not sufficiently authenticated, inasmuch as it does not set forth that the person who actually administered the oath is a magistrate. 1 Burr's Trial, 99.

10. An affidavit by defendant, stating that a material witness was absent, had been sick, and promised to attend the trial, is a ground for a continuance, there having been no previous delay on the part of defendant. The court compel a disclosure of the testimony, in order to judge of its materiality. Simms' Lessee v. Irvine, 3 Dall. 426; 1 Cond. Rep. 198.

11. Where an affidavit is relied upon for the continuance of a cause, the court will not go out of it to hear any ore tenus explanations. Smith v. Barker, 3 Day's Rep. 280.

12. Where the plaintiff, on a rule to show cause of action, produces a positive affidavit of the debt, the defendant cannot relieve himself from the necessity of giving bail, by proving that the plaintiff had sued him in another court. Post v. Sarmiento, 2 Wash. C. C. R. 198.

13. In every case of a motion to the court for

Affidavit.-Africans of the Amistad.

a cassetur, the facts on which it is grounded must be proved by affidavit. U. S. v. Coolidge, 2 Gallis. C. C. R. 367.

14. On a rule on the plaintiff to show his cause of action, who thereupon files a positive affidavit of the debt, the court will not order the party making the affidavit to be examined in court; no ground appearing to justify a suspicion that the debt was not due. Champion v. Ross, 4 Wash. C. C. R. 325.

15. The defendants cannot put in new rebutting evidence to affidavits of the plaintiff, offered in reply to those first offered by the defendants. Ames v. Howard, 1 Sumner's Rep. 482.

16. The affidavit of a party interested, taken without cross-examination, is competent evidence on a motion for an order on the opposite | party to produce books and writings, under the provisions of the act of the 24th September, 1789. United States v. Twenty Packages of Goods, Gilpin's D. C. R. 311.

17. When in acts subsequent to that of the 3d of March, 1817, the collector of the customs may administer an oath, or perform any other act, it was unnecessary to authorize the deputy collector, for it follows of course. United States v. Barton, Gilpin's D. C. R. 446.

18. On a rule to show cause why the defendant shall not be discharged on common bail, if the affidavit be positive on the face of it, the court will not put interrogatories to the affiant. Oliver v. Parish, 2 Wash. C. C. R. 462.

19. The affidavit on which the court will discharge on common bail, ought to state positively, and not doubtfully, the circumstances. Craig v. Brown, 1 Peters' C. C. R. 352.

20. The defendant, when the case was called for trial, swore that he had been informed that a particular individual, who resided in New York, was a material witness for him, and on the rejection of this affidavit, immediately made another, stating expressly that the witness was material, the court considering that both the affidavits were but as one, refused to postpone the trial, they amounting only to hearsay evidence. Hollingsworth v. Duane, Wallace's C.

C. R. 46.

21. An affidavit of a party interested in the suit, without a cross-examination, is competent evidence, on a motion under the act of congress of 1789, the judiciary act, for an order on the adverse party to produce books, papers, &c. The United States v. Packages of Goods, Gilpin's D. C. R. 34.

22. Where, under the statutes of the United States, a collector of the customs has authority to administer an oath, the authority extends to the deputy collector. The United States v. Barton, Gilpin's D. C. R. 446.

23. An affidavit to hold to bail must be positive; and the indebtment, under the statute of Illinois, must be stated from the knowledge of the affiant. Wright et al. v. Cogswell, 1 M'Lean, C. C. R. 471.

24. A plea of the general issue to an action founded upon a written instrument, by the rule of the court, must be sworn to. Thomas v. Clark, 2 M'Lean, C. C. R. 194.

AFRICANS OF THE AMISTAD.

1. The Spanish schooner Amistad, on the 27th day of June, 1839, cleared out from Havana, in Cuba, for Puerto Principe, in the same island, having on board Captain Ferrer, and Ruiz and Montez, Spanish subjects. Captain Ferrer had on board Antonio, a slave; Ruiz had forty-nine negroes; Montez had four negroes, which were claimed by them as slaves, and stated to be their property, in passports or documents, signed by the Governor-General of Cuba. In fact, these African negroes had been, a very short time before they were put on board the Amistad, brought into Cuba, by Spanish slave-traders, in direct contravention of the treaties between Spain and Great Britain, and in violation of the laws of Spain. On the voyage of the Amistad, the negroes rose, killed the captain, and took possession of the vessel. They spared the lives of Ruiz and Montez, on condition that they would aid in steering the Amistad for the coast of Africa, or to some place where negro slavery was not permitted by the laws of the country. Ruiz and Montez deceived the negroes, who were totally ignorant of navigation, and steered the Amistad for the United States; and she arrived off Long Island, in the state of New York, on the 26th of August, and anchored within half a mile of the shore. Some of the negroes went on shore, to procure supplies of water and provisions, and the vessel was then discovered by the United States brig Washington. Lieutenant Gedney, commanding the Washington, assisted by his officers and crew, took possession of the Amistad, and of the negroes on shore and in the vessel, brought them into the district of Connecticut, and there libelled the vessel, the cargo, and the negroes for salvage. Libels for salvage were also presented in the district court of the United States for the district of Connec ticut, by persons who had aided, as they alleged, in capturing the negroes on shore on Long Island, and contributed to the vessel, cargo, and negroes being taken into possession by the brig Washington. Ruiz and Montez filed claims to the negroes as their slaves, and prayed that they, and parts of the cargo of the Amistad, might be delivered to them, or to the representatives of the crown of Spain. The attorney of the district of Connecticut filed an information, stating that the minister of Spain had claimed of the government of the United States that the vessel, cargo, and slaves should be restored, under the provisions of the treaty between the United States and Spain, the same having arrived within the limits and jurisdiction of the United States, and had been taken possession of by a public armed vessel of the United States, under such circumstances as made it the duty of the United States to cause the same to be restored to the true owners thereof. The information asked that the court would make such an order as would enable the United States to comply with the treaty; or, if it should appear that the negroes had been brought from Africa, in violation of the laws of the United States, that the court would make an order for the removal of the

Africans of the Amistad.-Agent and Principal.

napped there, and unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and of the most solemn edicts and declarations of that government. Ibid.

3. The language of the treaty with Spain of 1795, requires the proprietor "to make due and sufficient proof" of his property; and that proof cannot be deemed either due or sufficient, which is stained with fraud. Ibid.

4. Supposing the African negroes on board the Amistad not to be slaves, but kidnapped and free negroes, the treaty with Spain cannot be obligatory upon them; and the United States are bound to respect their rights, as much as those of Spanish subjects. The conflict of rights between the parties, under such circumstances, becomes positive and inevitable, and must be decided upon the invariable principles of justice and international law. Ibid.

never taken from Africa, or brought to the United States, in contravention of these acts. When the Amistad arrived she was in possession of the negroes, asserting their freedom, and in no sense could possibly intend to import themselves into the United States as slaves, or for sale as slaves. Ibid.

negroes to Africa, according to the laws of the United States. A claim for Antonio was filed by the Spanish consul, on behalf of the representatives of Captain Ferrer, and claims are also filed by merchants of Cuba for parts of the cargo of the vessel, denying salvage, and asserting their right to have them delivered to them under the treaty. The negroes, Antonio excepted, filed an answer denying that they were slaves, or the property of Ruiz, or Montez; and denying the right of the court, under the constitution and laws of the United States, to exercise any jurisdiction over their persons. They asserted that they were native freeborn Africans, and ought of right to be free; that they had been, in April, 1839, kidnapped in Africa, and had been carried in a vessel engaged in the slave-trade from the coast of Africa to Cuba, for the purpose of being sold; and that Ruiz and Montez, knowing these facts, had purchased them, put them on board 5. There is no ground to assert, that the case the Amistad, intending to carry them, to be held of the negroes who were on board of the Amias slaves for life, to another part of Cuba; and stad comes within the provisions of the act of that, on the voyage, they rose on the master, congress of 1799, or of any other of the protook possession of the vessel, and were intend-hibitory slave-trade acts. These negroes were ing to proceed to Africa, or to some free state, when they were taken possession of by the United States' armed vessel, the Washington. After evidence had been given by the parties, and all the documents of the vessel and cargo, with the alleged passports, and the clearance from Havana, had been produced, the district court made a decree, by which all claims to salvage of the negroes were rejected, and salvage, amounting to one-third of the vessel and cargo, was allowed to Lieutenant Gedney, and the officers and crew of the Washington. The claim of the representatives of Captain Ferrer to Antonio, was allowed: the claims of Ruiz and Montez being included in the claim of the Spanish consul, and of the minister of Spain, to the negroes as slaves, or to have them delivered to the Spanish minister, under the treaty, to be sent to Cuba, were rejected; and the court decreed that the negroes should be delivered to the President of the United States, to be sent to Africa, pursuant to the act of congress of 3d March, 1819. From this decree the district attorney of the United States appealed to the circuit court, except so far as the same related to Antonio. The owners of the cargo of the Amistad also appealed from that part of the decree which allowed salvage on their goods. Ruiz or Montez did not appeal, nor did the representatives of the owner of the Amistad. The circuit court of Connecticut, by a pro forma decree, affirmed the decree of the district court, reserving the question of salvage on the merchandise on board the Amistad. The United States appealed from this decree. The decree of the circuit court was affirmed, saving that part of the same which directed the negroes to be delivered to the President of the United States, to be sent to Africa, which was reversed, and the negroes were declared to be free. The United States v. The Amistad, 15 Peters, 518.

2. The negroes were never the lawful slaves of Ruiz or Montez, or of any other Spanish subject. They are natives of Africa, and were kid- |

6. There is no pretence to say the negroes of the Amistad are "pirates" and "robbers," as they were kidnapped Africans, who, by the laws of Spain itself, were entitled to their freedom. Ibid.

AGENT AND PRINCIPAL.

1. General principles.

2. What acts of an agent bind the principal.
3. Responsibility of agents to principals
4. Agents, witnesses for or against principals..
1. General Principles.

Page 112 116

...... 118 ....... 122

1. It is believed to be a general rule, that an agent with limited powers cannot bind his principal, when he transcends his power. It would seem to follow, that a person transacting business with him, on the credit of his principal, is bound to know the extent of his authority; yet, if the principal has, by his declarations or conduct, authorized the opinion that he had given more extensive powers to his agent than were in fact given, he would not be permitted to avail himself of the imposition, and to protest bills, the drawing of which his conduct has sanctioned. Schimmelpennich et al. v. Bayard et al., 1 Peters, 264.

2. An agent for collecting of debts merely, is not a factor, within the meaning of the 13th sect. of the Virginia act of limitations. Hopkirk v. Bell, 3 Cranch, 454; 1 Cond. Rep. 595.

3. If an agent locate land for himself, which he ought to locate for his principal, he is in equity a trustee for, and liable to account to his principal. Massie v. Watts, 6 Cranch, 148; 2 Cond. Rep. 336.

General Principles.

Ibid.

16. In case of a loss and abandonment, the master becomes the agent of the underwriters. Ibid.

4. The agent who makes insurance for his | General Interest Ins. Co. v. Ruggles, 12 Wheat. principal, has authority to abandon without a 408; 6 Cond. Rep. 544. formal letter of attorney. The Chesapeake Ins. 15. The relation of principal and agent, beCo. v. Starke, 6 Cranch, 268; 2 Cond. Rep. 367. tween the owner and master of a ship, termi5. The act of an agent, done without autho-nates with the absolute destruction of the vessel. rity, may be ratified by the principal, so as to bind him in the same manner as if an original authority had existed. Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 6. By the well-settled principles of commer- 17. If an agent to collect and receive paycial law, the consignee is the authorized agent ment of bills, transmit them to his own private of the owner, whoever he may be, to receive agent to receive the money, and place the the goods; and by his endorsement of the bill of amount, when received, to his private credit, lading to a bona fide purchaser for a valuable payment to such agent is payment to the original consideration, without notice of any adverse in-agent; and if there be a failure, it is the loss of terest, the latter becomes, as against all the world, the owner of the goods. This is the result of the principle, that bills of lading are transferable by endorsement, and thus may pass the property. Conard v. The Atlantic Ins. Co., 1 Peters, 445.

7. When an agent abroad purchases exclusively on the credit of his principal, or makes an absolute appropriation and designation of the property for his principal, the property vests in the principal immediately on the purchase. The St. Joze Indiano, 1 Wheat. 208; 3 Cond. Rep.

543.

the latter, and not of his principal. Taber v. Perrot et al., 2 Gallis. C. C. R. 565.

18. An agent or trustee cannot, directly or indirectly, become the purchaser of property which is confided to his care. Church v. Marine Ins. Co., 1 Mason, 341.

19. A factor who sells goods on credit, contrary to the directions of his principal, becomes personally responsible, and the principal may recover of him the entire amount of the debt. Walker v. Smith, 4 Dall. 389.

20. No action will lie in the name of a principal, on a written contract made by his agent in 8. But when a merchant abroad, in pursuance his own name, although the defendant may have of orders, either sells his own goods, or pur-known the agent's character; and a demurrer chases goods on his own credit, and thereby in reality becomes the owner, no property in the goods vests in his correspondent, until he has done some notorious act to divest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. Ibid.

in such a case to the declaration, where the United States were the plaintiffs, was sustained. U. S. v. Parmele, 1 Paine, 252.

21. One who voluntarily undertakes to perform a particular piece of business for another, though gratuitously, is bound to obey the orders of his principal, and is liable in damages for the consequences of a breach of instructions. Walker et ital. v. Smith, 1 Wash. C. C. R. 152.

9. Where a check was drawn by a person who was the cashier of an incorporated bank, and appeared doubtful upon the face of the instrument, whether it was an official or a private act, parol evidence was admitted to show it was an official act. Mechanics' Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326; 4 Cond. Rep. 666.

10. The acts of agents do not derive their validity from professing, on the face of them, to have been done in the exercise of their agency. Ibid.

11. The liability of the principal depends upon the facts: 1st, that the act was done in the exercise of, and 2dly, within the limits of the power delegated. Ibid.

12. In ascertaining these facts, as connected with the execution of any written instrument, parol testimony is admissible. Ibid.

13. If an agent discovers a defect in the title of his principal to the land, he cannot misuse it to acquire a title to the land for himself; and if he does, he will be considered a trustee holding for his principal. Ringo et al. v. Burns et al., 10 Peters, 269.

14. It is a general rule, applicable to agencies of every description, that the agent cannot bind his principal, except in matters coming within the scope of his authority; and this rule applies particularly to a master and owner of a vessel, and is construed with considerable strictness.

22. A sale, made by the principal himself, is a revocation of the power of the agent to sell; and a sale made by the latter after knowledge of the revocation of his authority is void. Allen v. Ogden, 1 Wash. C. C. R. 174.

23. One who holds a bill of exchange merely as agent, or as collateral security, is not to be charged with it, until he has received the amount. Pigou v. French, 1 Wash. C. C. R. 278.

24. No principle is better settled, than that the powers of an agent cease on the death of his principal. Galt et al. v. Galloway, 4 Peters, 332.

25. Where an agent received the amount of a debt due on a judgment on which an execution had issued, and immediately paid it over to the principal, although a verbal notice was given to him by the defendants, when the money was paid, that it was intended to sue out a writ of error, to reverse the judgment, which was afterwards done, and the judgment was reversed; the agent not held liable to pay the money. Bank of the U. S. v. The Bank of Washington, 6 Peters, 8.

26. If foreign merchants send out by their general agent written orders to their factor in this country, to purchase tobacco on their account, but to ship it in the name of the factor, and by those orders the factor is referred to the verbal communications of the general agent,

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