General Principles.—Conditions Precedent.-Conditions Subsequent.

ship, and that Gass on giving ten days' notice was entitled to discharge himself from his liability for the future conduct of James; he, however, continuing liable for the balance then due by Stinson, and for the delivery over of the other property then in his hands. Gass v. Stinson, 2 Sumner's C. C. R. 544.

9. To constitute a conditional purchase there must be a sale for a valuable consideration with a right of repurchase. Flagg v. Mann, 2 Sumner's C. C. R. 487.

10. The agreement of the plaintiff to receive certain securities for the debt, and to give time, on their being certified in a particular way, being conditional, and the condition not being performed, the plaintiff might proceed with his execution, though he had not returned the securities. Bleeker v. Bond, 4 Wash. C. C. R. 6.

11. The king of Great Britain granted a charter of a town, in that part of the province of New Hampshire, which is now Vermont, to be divided among the grantees, and to be held on certain conditions mentioned in the charter. The defendants, who were one of the grantees, were a society in England, incorporated by a charter from the king. A scire facias was issued on behalf of the plaintiffs, requiring the defendants to show cause why a forfeiture of their right to the lands had not been incurred, and assigning as grounds of forfeiture a non-performance of the conditions on which the lands were held, and violations of their charter of incorporation. On demurrer to the scire facias, held, that such violations of their charter of incorporation could not be thus collaterally drawn in question, but that it should be vacated by some direct proceeding for the purpose. People of Vermont v. Society for Propagating the Gospel, Paine's C. C. R. 652.

12. Among the conditions of the grant were, that the grantees, their heirs and assigns, should pay rent, and cultivate a certain portion of the land: Held, by the circuit court, that no reason of public policy exempted the defendants from the performance of these conditions, and that they were within their letter and spirit. Ibid.

13. Each grantee was to pay annually, for the first ten years, an ear of corn, rent, for his share of the land, if lawfully demanded: Held, by the circuit court, that this was a mere nominal rent, and its non-payment not a ground of forfeiture; and that the breach of the condition was ill assigned, as there was no averment that it had been lawfully demanded. Ibid.

14. After the first ten years, a rent of one shilling for every hundred acres, was to be paid annually to the grantor, in his council chamber in Portsmouth, or to such officer as should be appointed to receive the same: Held, by the circuit court, that payment at the place appointed had been rendered impossible by the separation of the countries, and that the plaintiffs should have averred, that they had appointed another place of payment, or an officer to receive the payment, and that notice thereof had been given to the defendants. Ibid.

15. Where, by the conditions of a contract for the sale of land, the vendor may rescind it, by giving notice to the vendee, and paying the

money which had been received, it can only be rescinded as provided. M'Kay v. Carrington, 1 M'Lean's C. C. R. 64.

16. The condition, by consent or by acts, may be waived. Ibid.

2. Conditions Precedent.

17. Conditions precedent are such as must happen or be performed before the estate can invest or be enlarged, they admit of no latitude, they must be strictly, literally, aud punctually performed. It is a known maxim, that where the estate is to arise upon a condition precedent, it cannot vest till that condition is performed; and this has been so strongly adhered to, that even where the condition becomes impossible, no estate or interest grows thereupon. Where a condition copulative precedes an estate, the whole must be performed before the estate can arise; or where an act is previous to any estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect. Armstrong v. Carson's Ex'rs., 2 Dall. 317.

18. A devisee cannot avail himself of the invalidity of a condition precedent. Taylor v. Mason, 9 Wheat. 325; 5 Cond. Rep. 595.

3. Conditions Subsequent.

19. The land law of Virginia directs that, within three months after a survey is made, the surveyor shall enter the plat and certificate thereof in a book, well bound, to be provided by the court of his county, at the county charge. After prescribing this, among other duties, the law proceeds to enact, that any surveyor failing in the duties aforesaid, shall be liable to be indicted. The law does not, however, declare that the validity of such survey shall depend on its being recorded. Stringer v. The Lessee of Young, 3 Peters, 337.

20. It is an acknowledged rule of law, that if a grant is made on a condition subsequent, and its performance becomes impossible by the act of the grantor, the condition is void. The United States v. Arredondo and others, 6 Peters, 691.

21. Before the cession of Florida to the United States by Spain, a grant of a certain quantity of land was made on the condition of the settlement of two hundred Spanish families on the land, which condition was not complied with, in fact, before the cession. The question before the supreme court was, has the condition been complied with in law, or has such matter been presented to the court, as dispenses with the performance of the condition, and divests the grant of it. In delivering the opinion of the court, Mr. Justice Baldwin said: "It is an acknowledged rule, that a grant, if made on a condition subsequent, and its performance becomes impossible, by the act of the grantee, the grant becomes single. We are not prepared to say, that the condition of settling two hundred American families in an American territory has been, or is possible; the condition was not unreasonable or unjust at the time it was imposed, its performance would probably have been deemed a fair and adequate consideration for

Conditions Subsequent.

thing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it; if this is to be collected from the whole will, the condition is subsequent. Ibid. 374.

24. It is a general rule, that a devise in words of the present time, as "I give to A my lands in B," imports, if no contrary intent appears, an immediate interest, which vests in the devisee on the death of the testator. It is also a general rule, that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance. The result of these two principles seems to be, that a devise to A, on condition that he shall marry B, if uncontrolled by other words, takes effect immediately, and the devisee performs the condition, if he marry B at any time during his life. The condition is subsequent. Ibid. 376.

25. As the devise in the will to William King was on a condition subsequent, it may be construed so far as respects the time of taking the possession, as if it had been unconditional. The condition opposes no obstacle to his immediate possession, if the intent of the testator shall require that construction. Ibid. 378.

the grant, had Florida remained a Spanish pro- | shows that the act upon which the estate devince. But to exact its performance after its ces-pends must be performed before the estate can sion to the United States, would be demanding vest, the condition of course is precedent, and the 'summum jus' indeed; and enforcing a for- unless it is performed the devisee can také nofeiture on principles, which, if not forbidden by the common law, would be utterly inconsistent with its spirit. If the case required it, we might feel ourselves at all events justified, if not compelled to declare, that the performance of this condition had become impossible by the act of the grantors, by the transfer of the territory, the change of government, manners, habits, customs, laws, religion, and all the social and political relations of society and of life." Ibid. 22. The testator was seised of a very large real and personal estate, in the states of Virginia, Kentucky, Ohio, and Tennessee. After making, by his will, in addition to her dower, a very liberal provision for his wife, for her life, out of part of his real estate, and devising, in case of his having a child or children, the whole of his estate to such child or children, with the exception of the provision for his wife, and certain other bequests, his will declares: "in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition of his marrying a daughter of William Trigg's, and my niece Rachel, his wife, lately Rachel Finlay, in trust for the eldest son or issue of said marriage; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother, James King, or of sister Elizabeth's, wife to John Mitchell, and to their issue." The testator died without issue. He survived his father, and had brothers and sisters of the whole and half blood, who survived him, and also a sister of the whole blood, Elizabeth, the wife of John Mitchell, who died before him. William and Rachel Trigg never had a daughter, but had four sons. James King, the father of William King, the devisee, had only one daughter, who intermarried with Alexander M'Call. Elizabeth, the wife of John Mitchell, had two daughters, both of whom are married, one to William Heiskell, the other to Abraham B. Trigg. By the court:-We have found no case in which a general devise in words, importing a present interest, in a will making no other disposition of the property, on a condition which may be performed at any time, has been construed, from the mere circumstance that the estate is given on condition, to require that the condition must be performed before the estate can vest. There are many cases in which the contrary principle has been decided. The condition on which the devise to William King depended, is a condition subsequent. Finlay et al. v. King's Lessee, 3 Peters, 377.

23. It is certainly well settled, that there are no technical appropriate words which always determine whether a demise be on condition precedent or subsequent. The same words have been determined differently, and the question is always a question of intention. If the language of the particular clause, or of the whole will,

26. The introductory clause in the will states, "I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following." These words are entitled to considerable influence in a question of doubtful intent, in a case where the whole property is given, and the question arises between the heir and devisee respecting the interest devised. The words of the particular clause also carry the whole estate from the heir, but they fix the death of the testator's wife as the time when the devisee shall be entitled to possession. They are "in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King." The whole estate is devised to William King, but the possession of that part of it which is given to the wife, or others, for life, is postponed until after her death. Ibid.

27. If a deed for lands is to be made void by the happening of a subsequent condition, the performance of which is impossible at the time the deed is made, the condition only is void, and the estate of the grantee becomes absolute. Hughes et al. v. Edward's et ux., 9 Wheat. 489; 5 Cond. Rep. 648.

28. R. B. being seised of lands in Maryland, executed three instruments of writing, each purporting to be his will. The first, dated October 31, 1789, gave his whole estate, after pecuniary legacies to his other nephews and nieces, to his nephew J. T. M. The second, dated July 16, 1800, gives his whole real estate to J. T. M. during his life, and after his death to his eldest son A. in tail; on condition of his changing his name to A. Barnes; with remainder to the heirs of his nephew J. T. M., lawfully begotten, for

Condition Subsequent.

deliver in as particular an account of their loss or damage, signed with their own hands, as the nature of the case will admit of, and make proof," &c.; "and shall procure a certificate, under the hand of a magistrate," &c., "not concerned in such loss," &c., "importing that they are acquainted with the character and circumstances of the person insured," &c., "and until such affidavit and certificate are produced, the loss claimed shall not be payable," &c.: Held, by the supreme court, that the words "as soon as possible," cannot be drawn down to fix the construction of the clause respecting the certificate. The true intent and meaning of it is, that the certificate must be procured within a reasonable time after the loss: it would be a most inconvenient course to adopt a different construction not required by the terms of the clause, or the context; as it would make the material inquiry, not the production of the certificate, but the possible diligence in proving it. The assured

ever, on their changing their surname to Barnes. The third, without date, but proved to have been executed subsequently to the others, probably in 1803, after some small bequests, proceeded: "I give the whole of my property, after complying with what I have mentioned, to the male heirs of my nephew J. T. M., lawfully begotten, for ever, agreeably to the law of England, which was the law of our state before the revolution; that is, the oldest male heir to take all, on the following terms: that the name of the one that may have right, at the age of twenty-one, with his consent, be changed to A. Barnes, by an act of public authority, of the state, without any name added, together with his taking an oath, before he has possession, before a magistrate of St. Mary's county, and have it recorded in the office of the clerk of the county, that he will not make any change during his life, in this my will, relative to my real property; and on his refusing to comply with the abovementioned terms, to the next male heir, on the abovementioned terms; is not entitled to receive or sue for the loss, until and so on, to all the male heirs of my nephew the certificate is obtained; for it is a condition J. T. M., as may be on the same terms; and all precedent to his right of action. The language of them refusing to comply in a reasonable time is, and until such affidavit and certificate are after they have arrived at the age of twenty-one, produced, the loss claimed shall not be payable: say not exceeding twelve months, if in that time and besides, in the body of the policy, it is exit can be done, so that no act of intention to de-pressly provided: "such loss and damage as feat my will shall be allowed of; and on their refusing to comply with the terms abovementioned, if any such person may be then, to the son of my late nephew J. T. M. named A. T. M. on the abovementioned terms, and on his refusal, to his brother J. T. M.; and on his refusing to comply with the abovementioned terms, to the heirs male of my nephew A. B. T. M., lawfully begotten, on the abovementioned terms; and on their refusal, to the male heirs of my nicce, Mrs. Chichester, lawfully begotten, on their complying with the abovementioned terms; and on their refusal, to the daughter of my nephew, J. T. M., named Mary; and so on to any daughter 30. In a former action against the same comhe may have or has." The testator then appoints pany, by the same plaintiff, on the same policy J. T. M. his sole executor, with a salary of six- of insurance, "a certificate," intended to be a teen hundred dollars per annum for his life, and compliance with the 9th fundamental article in adds, "my will is that he shall keep the whole the policy, was left with the insurance company of my property in his possession during his life." by the assured, and no objection was made to it He then empowered his executor to manage the at the time it was delivered, or until after suit estate at his discretion; to employ agents and brought on the policy, and the case was on trial pay them such salaries as he shall think proper; before a jury. Upon a writ of error, the judg to repair the houses and build others as he may ment of the circuit court was reversed, for error think necessary; to reside at his plantations, in the instructions given by the circuit court to and to use the produce for his support; and the jury, on the trial. The plaintiffs, on the manadds, "after which to be the property of the date of the supreme court ordering a venire facias person that may have a right to it as abovemen- de novo coming into the circuit court, disconti tioned:" Held, by the supreme court, that the nued the suit. They immediately procured and conditions annexed to the estate devised to the presented to the insurance company another ceroldest male heir of J. T. M. were subsequent tificate, in precise conformity with the requireand not precedent: and that consequently the ments of the article. The court were of opinion, contingency on which the devise was to take that, under all these facts and circumstances, the effect, was not too remote, the estate vesting on non-production of the certificate at an earlier the death of J. T. M. to be divested on the non-period, was fully accounted for, and that the pro performance of the condition. Taylor et al. v. per certificate was procured within a reasonable Mason, 9 Wheat. 325; 5 Cond. Rep. 595. time. The first certificate was procured shortly

the assured shall be entitled to receive, by virtue of the policy, shall be paid within sixty days after notice, and proof thereof be made by the assured, in conformity to the conditions of the company, subjoined to the policy;" so that it is manifest that the assured could not be entitled to maintain any action until he had furnished all the preliminary proofs: so that the delay is not injurious to the company, but solely to the assured, by depriving him of his right to judgment until it is procured. The Columbia Ins. Co. of Alexandria v. Lawrence & Poindexter, 10 Peters, 507.

29. One of the fundamental rules of an insu-after the loss, and presented to the company, rance company insuring against loss by fire, pro- which then made no objection to it. The objecvided that any person insured, sustaining a loss tion to it was first taken at the trial in the circuit by fire, "shall, as soon as possible thereafter, court in the former suit. The court were then

Confiscation and Sequestration.-Conflict of Laws.-Congress.

of opinion that the previous conduct of the com- | 1799, entitled "an act concerning escheats and pany amounted to evidence proper to be left to forfeitures from British subjects," and under a jury, of a waiver of any objection to the certi- which a debtor to a subject of Great Britain, had, ficate. The court reversed the judgment on that in conformity to the provision of the law, paid point; and, almost contemporaneously with the into the loan-office of the state a portion of the annunciation of that decision, the new certificate debt due by him, did not operate to protect the was obtained. The non-production, then, of the debtor from a suit for such debt, after the treaty proper certificate, was occasioned, not by any of peace of 1783. The statute of Virginia, if it laches properly imputable to the party, but by was valid, and the legislature could pass such a the omission of the company to give notice of law, was annulled by the fourth article of the the fact, and of the mistaken confidence placed treaty; and under this article suits for debts so by the party in the company itself. Ibid. due, might be maintained, the provisions of the Virginia law notwithstanding. Ware's Adm'rs. v. Hylton et al., 3 Dall. 199; 1 Cond. Rep. 99.

10. An injunction was granted by the supreme court on the application of the state of Georgia, to stay money in the hands of the marshal of the state of Georgia, which was claimed by that state under her confiscation act, for the purpose of having the claim decided at law. The State of Georgia v. Brailsford, 2 Dall. 402; 1 Conc

CONFISCATION AND SEQUESTRATION. 1. By the confiscation act of Georgia, a debt due to the plaintiff, on bond, by a citizen of the state of Georgia, had become forfeited to the state, he having been attainted by an act of the legislature of that state, for adhering to the Bri-Rep. 3. tish cause in the war of the Revolution. In a suit instituted by him for the debt, upon the act of the legislature being pleaded in bar by the obligor, he replied that the acts of the legislature were contrary to the constitution of that state, and void. Held, by the supreme court, that the confiscation acts of Georgia were valid. Basil Cooper v. Telfair, 4 Dall. 14; 1 Cond. Rep. 211. 2. The power of confiscation and banishment does not belong to the judicial authority, whose process could not reach offenders; and yet it is a power that grows out of the very nature of the social compact, which must reside somewhere; and which is so inherent in the legislature, that it cannot be divested, or transferred, without an express provision of the constitution. Ibid.

3. A debt being sequestrated in time of war, the right to it is not divested, but is only sus pended until the restoration of peace. The State of Georgia v. Brailsford, 3 Dall. i; 1 Cond. Rep. 8. 4. The act of congress confiscating the estate of a mortgagor, is no bar to the claim of a mortgagee, a British merchant, whose debt was sequestered during the war between the United States and Great Britain. Higginson v. Mein, 4 Cranch, 415; 4 Cond. Rep. 155.

CONFLICT OF LAWS.

1. Where a suit was brought for a balance of account, for advances made at Boston, upon goods consigned to the plaintiffs at Trieste, and sold by them at a great loss, it was held, that the balance was not payable at Trieste, but at Boston, and, therefore, the balance was to be estimated in damages at the par, and not at the rate of exchange. Grant v. Healey, 3 Sumner's C. C. R. 523.

2. Where a balance is due on account, payable in a foreign country, the creditor, if he sues for the same in another country, is entitled to be paid at the rate of exchange. In other words, he is entitled to have the money replaced, where it was agreed to be paid. Ibid.

3. Semble: That there is no difference between bills of exchange and other contracts for payment of money in a foreign country, as to the right to damages to replace the money where it was payable, except that the usage of trade has fixed the rate of damages. Ibid.

4. Semble: That the advances ought to be deemed reimbursable at the place where they are made, and sales of goods accounted for at that place, where they are made, or authorized

5. By the confiscation acts of Maryland, the equitable interests of British subjects were confiscated, without office found, or entry, or other act done; although such equitable interests were not discovered until long after the peace with to be made. Ibid. Great Britain. Smith v. The State of Maryland, 6 Cranch, 286; 2 Cond. Rep. 377.

6. By the law of nations, and by the common law, the sovereign of a nation may lawfully confiscate the debts of an enemy during war, or by way of reprisal. The Emulous, 1 Gallis. C. C. R. 563.

7. In respect to the goods of an enemy, found within the dominions of a belligerent power, the right of confiscation is clear. Ibid.

8. Enemy's debts, so far as consists in barring the creditor, and compelling payment from the debts for the use of the public, can be confiscated. Hamilton v. Eaton, N. Carolina Cases, 79. 9. The act of the legislature of Virginia, of

CONGRESS.

1. Congress had power, before the ratification of the articles of confederation, to establish courts of appeal for all prize causes; and the decision of the court of appeals is final against all proceedings in courts of admiralty erected by or under the authority of the separate states of the Union. Penhallow et al. v. Doane's Administrators, 3 Dall. 54; 1 Cond. Rep. 21.

2. It has been truly said, that under a consti

Congress.

tution conferring specific powers, the power of giving priority must be granted, or it cannot be exerted. The power of congress to give the| priority to debts due to the United States, is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof. United States v. Fisher et al., Assignees of Blight, 2 Cranch, 358; 1 Cond. Rep. 421.

3. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. Ibid.

4. Every act of the legislature repugnant to the constitution of the United States, is ipso facto void, and it is the duty of the supreme court to declare it so. Vanhorn's Lessee v. Dorance, C. C. of Pennsylvania, 2 Dall. 304.

courts ordained and established by itself. Martin v. Hunter's Lessee, 1 Wheat. 304; 3 Cond. Rep. 576.

14. The power of naturalization is exclusively in congress. Chirac v. Chirac, 2 Wheat. 259; 4 Cond. Rep. 111.

15. Congress may pass all laws which are necessary for giving the most complete effect to the exercise of the admiralty and maritime jurisdiction, granted in the constitution to the United States; but the general jurisdiction, subject to this grant, adheres to the territory as a portion of sovereignty not yet given away, and the residuary powers of legislation still remain in the states. The United States v. Bevan, 3 Wheat. 336; 4 Cond. Rep. 275.

16. Congress has power to provide for the punishment of offences committed by persons serving on board a ship of war of the United States, wherever that ship may be; but congress has not exercised that power in the case of a ship lying in the waters of the United States. Ibid.

5. The powers granted to congress are not exclusive of similar powers existing in the states, unless where the constitution has expressly, in terms, given an exclusive power to congress, or 17. The mere grant of a power to congress the exercise of a like power is prohibited to the does not imply a prohibition on the states to exstates, or there is a direct repugnancy or incom-ercise the same power. Sturges v. Crowninshield, patibility in the exercise of it by the states. 4 Wheat. 122; 4 Cond. Rep. 409. Houston v. Moore, 5 Wheat. 1; 4 Cond. Rep.

589.

6. The example of the first class is to be found in the exclusive legislation delegated to congress, over places purchased by the consent of the legislature of the state, in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, of the prohibition of a state to coin money or emit bills of credit; of the third class, the power to establish a uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. Ibid.

18. Whenever the terms in which a power is granted to congress, require that it should be exercised exclusively by congress; the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act upon it. Ibid.

19. Congress has power to incorporate a bank. M'Culloch v. State of Maryland, 4 Wheat. 316; 4 Cond. Rep. 466.

20. The act of congress of March 3d, 1819, ch. 76, sec. 35, referring to the law of nations for a definition of the crime of piracy, is a con7. In all other classes of cases, the states restitutional exercise of the power of congress to tain concurrent authority with congress. Ibid. define that crime. United States v. Smith, 5 8. But in cases of concurrent authority, where Wheat. 153; 4 Cond. Rep. 619. the laws of the states and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority; and the state laws so far, and so far only, as such incompatibility exists, must necessarily yield. Ibid.

9. There is nothing in the constitution of the United States, which prohibits congress to pass laws violating the obligation of contracts, although such power is denied to the states. Evans v. Eaton, Peters' C. C. R. 322.

10. The laws of congress made in pursuance of the constitution of the United States are the supreme laws of the land, any thing in the constitution or laws of any state notwithstanding. The U. S. v. John Hart, Peters' C. C. R. 390.

11. Au act of congress repugnant to the constitution, cannot become the law of the land. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep.

267.

12. An act of congress cannot invest the supreme court with an authority not warranted by the constitution. Ibid.

13. Congress cannot vest any portion of the judicial power of the United States, except in

21. Congress has authority to impose a direct tax on the District of Columbia, in proportion to the census directed to be taken by the constitution. Loughborough v. Blake, 5 Wheat. 317; 4 Cond. Rep. 660.

22. The power of congress, to levy and collect taxes, duties, imposts, and excise, is co-extensive with the territory of the United States. Ibid.

23. The power of congress to exercise exclu sive legislation, in all cases whatsoever, within the District of Columbia, includes the power of taxing it. Ibid.

24. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States; and the states have no authority to control those proceedings, except so far as the state process acts are adopted by congress, or by the courts of the United States under the authority of congress. Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1.

25. The authority of congress to lay and collect taxes, does not interfere with the power of the states to tax for the support of their own governments; nor is the exercise of that power by the states, an exercise of any portion of the