Recording of Deeds. of the lands were situated. De Lancey's Lessee | of common pleas of that state that he was such v. M' Kean, 1 Wash. C. C. R. 525. 89. The recording of a deed in the proper office is prima facie evidence, and no more, that the deed was regularly proved and admitted of record. Lessee of Talbot v. Simpson, Peters' C. C. R. 188. 90. By the laws of North Carolina and Tennessee, a deed for land in Tennessee, executed in North Carolina, by grantors residing there, in the year 1794, proved in 1797 by one of the subscribing witnesses, before a judge in North Carolina, and recorded in 1808 in the proper county in Tennessee, is valid and admissible in evi- | dence. Blackwell v. Patten et al., 7 Cranch, 475; 2 Cond. Rep. 569. Les that he was a chief officer in the county. 98. It is no objection to the exemplification, knowledgment, did not also state himself a justhat the justice who wrote and certified the actice of the peace in the certificate, if the omission be supplied by proof of that fact at the trial. If he do so style himself, that is prima facie evidence of the fact. Ibid. of Virginia, which was passed in December, 1792, 99. The fair construction of the act of assembly for regulating conveyances, requires that a deed be recorded by the general court of the district, of trust, or a mortgage on personal estate, should county, city, or corporation, in which the grantor resided; and, consequently, a deed of trust, or mortgage on slaves, which was recorded only in the court of the county in which the slaves a different county,) was held void, as to a crewere usually employed, (the grantor residing in ditor. Bond v. Newburn et al., 1 Brockenb. C. C. R. 316. 91. Although the grantees, in a deed executed after, but recorded before another conveyance of the same land, being bona fide purchasers without notice, are by law deemed to have a better title; yet where L. conveyed to C. the land in controversy, specifically describing himself as devisee of A. S., by whom the land was owned in his lifetime, and by a subsequent deed which was first recorded, L. conveyed to B. "all the right, title, and claim, which he the said A. S. had, and all the right, title, and interest which law of Pennsylvania of 1715, relative to the re100. According to the true construction of the he the said L. holds as legatee and representa-cording of deeds, the deed should be recorded tive of the said A. S. deceased, of all land lying in the county where the land lies. But if a and being within the state of Kentucky, which deed conveys lands lying in different counties, cannot at this time be particularly described, the law does not require that it shall be recorded whether by deed, patent, mortgage, survey, lo- in each county. It is sufficient if it be recorded cation, contract or otherwise," with a covenant in one of the counties, and then the exemplifiof warranty against all persons claiming under cation of it will be evidence as to any of the L. his heirs and assigns: it was held, that the lands conveyed: and this construction of the law latter conveyance operated only upon lands, the is supported by the practice and tacit approbaright, title and interest of which was then in L., tion of the bench and bar, as clearly proved to and which he derived from A. S.; and, conse- the court. De Lancey's Lessee v. M'Kean, 1 Wash. quently, could not defeat the operation of the C. C. R. 525. first deed upon the land specifically conveyed. Brown v. Jackson, 3 Wheat. 449; 4 Cond. Rep. 291. 92. Under the law of Tennessee, the legal estate does not pass by a deed of conveyance to | the grantee until it is registered. Lessee of Patten et al. v. Reily, 1 Cooke, 119. 93. Registration was intended by the legislature to stand in the place of livery of seisin. Lessee of Patton v. Brown, Ibid. 126. 94. In Tennessee, so soon as a deed is registered, the grantee is considered as having been legally seized from the date of it: the plaintiff in ejectment may there recover upon a deed executed before, but registered after the date of the demise in the declaration. Ibid. 95. If the law directs a conveyance to be registered in the county where the grantor resides, and there are several grantors, it is not sufficient to register in the county where one only resides. Watson et al. v. Dobbins, 1 Cooke, 350. 96. Recitals in a deed are binding on the parties to it and those claiming under them, but not on strangers. Denn, ex dem. of West v. Pine et al., 4 Wash. 691. 97. To authorize the recording of a deed by the law of Pennsylvania, a certificate of its acknowledgment by a justice of the peace of the state of New York, and a certificate of the court lute necessity to record deeds at all, except 101. Until the act of 1778, there was no absotection of creditors and subsequent purchasers. mortgages; and this law was passed for the proIbid. 102. The provisions of the act of 1715 were keeping of deeds. lbid. merely intended for the preservation and safe 103. A deed to A, in consideration of a sum form of a deed of bargain and sale, is to be conof money paid or secured to be paid, in the usual sidered as a conveyance executed, notwithstanding a covenant by the grantor "to make a patent," which can only mean, to obtain one, and deliver it to the grantee. Lessee of Willis v. Bucher, 3 Wash. 369. case agreed, cannot presume that a deed made of 1796, respecting conveyances, restrains the DEEDS POLL.-DELAWARE RIVER.-DEL CREDERE COMMISSION. 545 Deeds Poll.-Delaware River.-Del Credere Commission. for public convenience. The original right to convey property remains unimpaired, except so far as it is abridged by the statute. Lessee of Sicard v. Davis et al., 6 Peters, 124. covenants or grants, not malum in se, but illegal at the common law, and those containing condi tions, covenants or grants, illegal by the express prohibitions of statutes. In each case the bonds 106. The first section of the act can apply or other deeds are void as to such conditions, only to purchasers of the title asserted by the covenants or grants which are illegal, and are conveyance, and to the creditors of the party good as to all others which are legal and unexwho has made it. It protects such purchasers ceptionable in their purport. The only excepfrom a conveyance of which they had no notice, tion is, when the statute has not confined its and which, if known, would have prevented prohibitions to the illegal conditions, covenants their making the purchase; because it would or grants, but has expressly, or by necessary have informed them that the title was bad, that implication, avoided the whole instrument to all the vendor had nothing to sell. But the pur-intents and purposes. Ibid. chaser from a different person, of a different 113. The registry of a paper, not duly or letitle, claimed under a different patent, would be gally recorded, is not constructive notice. Lyman entirely unconcerned in the conveyance. To v. Arnold, 5 Mason's C. C. R. 195. him it would be entirely unimportant, whether this distinct conflicting title was asserted by the original patentee, or by his vendor. The same general terms are applied to creditors and to purchasers; and the word creditors can mean only the creditors of a vendor. Ibid. 107. Under that statute, the only requisites to a valid conveyance of lands are, that it shall be in writing, and shall be sealed and delivered. Ibid. 108. The acknowledgment, and the proof which may authorize the admission of the deed to record, and the recording thereof, are provisions which the law makes for the security of creditors and purchasers. They are essential to the validity of the deed as to persons of that description, not as to the grantor. His estate passes out of him and vests in the grantee, so far as respects himself, as entirely, if the deed be in writing, sealed and delivered, as if it be also acknowledged, or attested and proved by three subscribing witnesses, and recorded in the proper court. In a suit between them, such a deed is completely executed, and would be conclusive, although never admitted to record, nor attested by any subscribing witness. Proof of sealing and delivering would alone be required; and the acknowledgment of the fact by the party would be sufficient proof of it. Ibid. 109. Deeds for lands in the District of Colum bia, executed by an insolvent debtor, under the insolvent laws of the state of Pennsylvania, and under and in conformity with the insolvent laws of the state of Maryland, not having been enrolled in the general court where the lands lie, are, in a legal sense, mere nullities, and incapable of passing the lands described in them. Greenleaf's Lessee v. Birth, 6 Peters, 302. 110. In the probate of deeds, the court has a special limited jurisdiction, and the record should state the facts which show its jurisdiction in the particular case. If this rule be disregarded, every deed admitted to record, on whatever evidence, must be considered as regularly admitted. Ross v. M'Lung, 6 Peters, 283. 111. Bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se. The United States v. Bradley, 10 Peters, 343. 112. There is no solid distinction between bonds and other deeds containing conditions, 114. By the common law, a deed of land is valid without registration; and where register acts require deeds to be recorded, they are valid until the time prescribed by the statute has expired; and, if recorded within the time, are as effectual from the date of execution, as if no register act existed. Clarke v. White, 12 Peters, 178. 115. A delivery of a deed is essential to its validity. If it be delivered as an escrow on conditions, those conditions must be complied with, before it can take effect as a deed. Carr v. Hoxie, 5 Mason's C. C. R. 60. DEEDS POLL. It is not necessary to produce the deed poll, from the person in whose name the application was made for a tract of land, in order to support the title of the plaintiff in an ejectment for the land; the plaintiff, or those under whom he claims, having obtained the warrant, and paid the purchase-money. Lessee of Willink v. Miles Peters' C. C. R. 429. DELAWARE RIVER. 1. The proprietaries of New Jersey had no right in the Delaware river beyond low-water mark. Bennet v. Boggs, Baldwin's C. C. R. 73. 2. The right to the bed of the river was in the crown of England before the revolution; and therefore the compact of 1676, between the proprietary of Pennsylvania and the proprietaries of New Jersey, did not give a right to the fishe ries therein. The king was not a party to the compact. Ibid. 3. The rights of the crown devolved on the states by the revolution, and were confirmed to them by the treaty of peace. Ibid. DEL CREDERE COMMISSION. 1. The defendants sold goods consigned to them by the plaintiff, under a del credere commission, and received in payment, for part of the sales, the bills of exchange of W. They were authorised by the plaintiff to remit in bills, and with the other proceeds of sales, they purchased Delivery. Demurrage.-Demurrer. a bill drawn by J. Both bills were protested. [acceptances, drawn by the purchaser and enThe court held the defendants liable for W.'s dorsed and accepted for his accommodation, bill, it having been received in payment for a were to be given to secure payment. The debt guarantied by them, but not for the bill sugars were to be shipped on board a ship bedrawn by J., which was remitted according to longing to the purchaser, then lying in the same order. Muller v. Bohlens, 2 Wash. C. C. R. 378. port, and bound on a foreign voyage. The ac2. A del credere commission is not demand- ceptances were to be delivered upon the return able, where the sale is made on credit, but is, of the purchaser from Boston, to which place he nevertheless, paid for in cash, in consideration was going. While at Boston, he failed, and asof the deduction of a certain per centage. signed his property. During his absence, a part Kingston v. Wilson, 4 Wash. C. C. R. 310. of the sugars were put on board the ship. After his return, he kept his own failure a secret, and also the failure of his endorsers and acceptor, and procured a delivery of the sugars. Held, that if the delivery of the sugars, under these circumstances, was not intended by the parties to be an absolute delivery, but a delivery on condition only; that the terms of the contract were complied with, then the vendor might reclaim the sugars, and his property in them was not gone. It was further held, that if the delivery of the sugars, after the failure, was procured by a fraudulent suppression of that fact, the delivery as to that portion was altogether without legal validity, whatever might be the case as to the other parcels. D'Wolf, Jr. v. Babett, 4 Mason's C. C. R. 289. DELIVERY. 1. Where goods were sold, lying in the vendor's warehouse, on a credit of six months, for which a note was given, and the goods were sold by marks and numbers, and it was a part of the consideration of the purchaser, that they might lie rent free in the warehouse, at the option of the vendee, and for his benefit, until the vendor should want the room. Held, that there was a complete delivery of the goods, so that on the insolvency of the vendee, they could not be stopped by the vendor. Barrett v. Goddard, 3 Mason's C. C. R. 107. 2. A delivered cotton yarn to B, on a contract, that the same should be manufactured into plaids. B was to find the filling, and was to weave so many yards of the plaids, at fifteen cents per yard, as was equal to the value of the yarn at fifteen cents per pound: Held, that by delivery of the yarn to B, the property thereof vested in him. Buffum v. Merry, 3 Mason's C. C. R. 478. 3. The delivery of a deed may be inferred from circumstances, and need not be proved by positive testimony. Gardner v. Collins, 3 Mason's C. C. R. 398. 4. Where A made an assignment of a vessel at sea, in trust to B, to indemnify B for endorsements, and also to pay the demands of certain other creditors named in the conveyance: Held, that the taking possession of the vessel by B in a reasonable time and manner after her return, would be a sufficient delivery and possession to support the assignment, although the creditors of it should attach the vessel before such possession was attained. Held, also, that it was not necessary to the validity of the assignment, that the creditors should be technical parties to it, nor that their assent should be, in any manner, given to it, at the time of its execution, if they assented before any attachment of the property. Held, further, that the assignment, being for the benefit of the preferred creditors unconditionally, and without any stipulation for a release or otherwise, the law would in such a case presume the assent of the creditors. Wheeler v. Sumner, 4 Mason's C. C. R. 183. 5. Under a conveyance taking effect under the statute of uses, the bargainee has a complete seisin in deed, without actual entry or livery of seisin. Green v. Liter et al., 8 Cranch, 229; 3 Cond. Rep. 97. 6. A purchase was made of one hundred and ninety-eight boxes of sugar, for which certain DEMURRAGE. 1. Where a vessel is detained in port by the wrongful absence of a seaman, a deduction of his wages is allowed to the loss actually sustained by the detention of the vessel. Brown v. The Neptune, Gilpin's D. C. R. 90. 2. Where a vessel is detained by the refusal of the seamen to work, they are to be charged with the demurrage, and the proportion of each seaman who refused is to be deducted from his wages. Snell v. The Independence, Gilpin's D. C. R. 145. 3. Demurrage is often a matter of contract, but it is not necessarily so; it is an allowance for the detention of the vessel, and may in cases, ex delicto, be adopted as the true measure of compensation. The Apollon, 9 Wheat. 362; 5 Cond. Rep. 612. DEMURRER. 1. Where the whole pleadings are spread upon the record by a demurrer, it is the duty of the court to examine the whole, and go to the first error. Where the special demurrer is by the plaintiff, his cwn pleadings are to be scrutinized; and the court will notice what would have been bad upon a general demurrer. Cooke v. Graham's Adm'rs, 3 Cranch, 221; 1 Cond. Rep. 510. 2. Upon a demurrer to evidence, the testimony is to be taken most strongly against him who demurs; and such conclusions as a jury might justifiably draw, the court ought to draw. Pawling et al. v. The United States, 4 Cranch, 219; 2 Cond. Rep. 92. 3. It is a known rule that a demurrer brings Demurrer. all the pleadings before the court, and in consequence of which judgment may be rendered against him who committed the first fault; or, which will most generally produce the same result, for him who upon the whole record shall appear to be entitled to the judgment. United States v. Gurney et al., 4 Cranch, 333; 2 Cond. Rep. 132. 4. It is a matter of discretion with a court, whether it will compel a party to join in a demurrer to evidence. Young et al. v. Black, 7 Cranch, 565; 2 Cond. Rep. 607. 5. A demurrer to evidence ought not to be allowed where the party demurring refuses to admit the facts which the other side attempts to prove; nor where he offers contradictory evidence, or attempts to establish inconsistent propositions. Ibid. 6. The want of oyer of the condition of a bond, is fatal. Upon demurrer, the judgment of the court must be against the party who commits the first error. United States v. Arthur, 5 Cranch, 257; 2 Cond. Rep. 247. 16. On a demurrer to evidence, the judgment of the court stands in the place of the verdict of a jury, and the defendant may take advantage of any defects in the declaration, by a motion in arrest of judgment, or by writ of error. Bank of the United States v. Smith, 11 Wheat. 175; 6 Cond. Rep. 257. 17. On a demurrer to evidence, the court is substituted in the place of the jury, as the judges of the facts; and everything which the jury might infer from the evidence is to be considered as admitted. Ibid. 18. The practice of demurring to evidence is to be discouraged; and courts will be extremely liberal in their inferences where the party takes the question of fact from the appropriate tribunal. Ibid. 19. A demurrer admits only of such facts as are well pleaded, and never admits the law arising on those facts; and a demurrer may well be entered for a false allegation of law. United States v. Arnold, 1 Gallis. 348. 20. The party who demurs to evidence, seeks 7. A demurrer should state the facts of the thereby to withdraw the consideration of the case as relied upon, and not the evidence of facts from the jury, and is therefore bound to them. Fowle v. The Common Council of Alex-admit not only the truth of the evidence, but andria, 11 Wheat. 320; 6 Cond. Rep. 328. every fact which that evidence may legally conduce to prove in favour of the other party. And if upon any view of the facts, the jury might have given a verdict against the party demur. 8. One party cannot insist on the other party joining in the demurrer, unless he has distinctly admitted, on the record, every fact, and every conclusion, which the evidence given for the ad-ring, the court is also at liberty to give judg versary has conduced to prove. Ibid. 9. If there should be a joinder on demurrer without such admission, judgment will be refused on the demurrer. Ibid. 10. Variances between the writ and declaration are matters pleadable in abatement only, and cannot be taken advantage of upon general demurrer to the declaration. Duvall v. Craig, 2 Wheat. 45; 4 Cond. Rep. 25. 11. If a breach of the condition of a bond given by the owners of a private armed vessel under the prize act of June 26, 1812, ch. 430, sec. 3, appears upon demurrer, the defendants are not entitled to a hearing in equity under the judiciary act of 1789, ch. 20, sec. 26. Greeley v. The United States, 8 Wheat. 257; 5 Cond. Rep. 433. 12. If oyer be improperly demanded, the effect is aided on a general demurrer, where it is set down as a cause of demurrer. Sneed v. Wister, 8 Wheat. 690; 5 Cond. Rep. 556. 13. No judgment can be rendered upon a demurrer to evidence until there is a joinder in demurrer; and issue cannot be joined upon the demurrer so long as there is any matter of fact in controversy between the parties. Fowle v. The Common Council of Alexandria, 11 Wheat. 320; 6 Cond. Rep. 328. ment against him. Thornton v. The Bank of Washington, 3 Peters, 36. 21. The defendant in the court below having withdrawn his cause from the jury by a demurrer to evidence, or having submitted to a verdict for the plaintiff, subject to the demurrer, cannot hope for a judgment iu his favour, if by any fair construction of the evidence the verdict can be sustained. Chinoweth et al. v. The Lessee of Haskell et al., 3 Peters, 96. 22. A demurrer is an answer in law to the bill, though not, in a technical sense, an answer according to the common language of practice. State of New Jersey v. The People of the State of New York, 6 Peters, 323. 23. At January term, 1831, an order was made, giving the state of New York leave to appear on the second day of this term, and answer the complainants' bill; and if there should be no appearance, that the court would proceed to hear the cause on the part of the complainants, and to decree on the matter of the bill. On the first day of the term, a demurrer to the complainants' bill was filed, which was signed "Green C. Bronson, attorney-general of New York." No other appearance was entered on the part of the defendants. By the court:-The demurrer filed in the case by the attorney-general of New York, he being a practitioner in this court, is consi dered as an appearance for the state. If the attorney-general did not so mean it, it is not a 15. Where the demurrer to evidence is de- paper which can be considered as in the cause, fective in these respects, and judgment has, not- or be placed on the files of the court. The dewithstanding, been rendered upon it for the murrer being admitted as containing an appearparty demurring, by the court below, the judg-ance by the state of New York, it amounts to a ment will be reversed in the supreme court and compliance with the order of the court. Ibid. a new trial awarded. Ibid. 24. It is an established rule on demurrer, that 14. The demurrer to evidence must state facts, and not merely the evidence conducing to prové them. Ibid. Demurrer. Departments of the Government of the United States. although the pleading demurred to may be defective, the court will give judgment against the party whose pleading was first defective in point of substance. Sprigg v. The Bank of Mount Pleasant, 10 Peters, 257. 25. A court of equity may allow an amendment of a bill after deciding against the bill, and allowing a demurrer on argument. Hunt v. Rousmanier, 2 Mason's C. C. R. 342. 26. A judgment had been recovered by the United States for a penalty which was afterwards remitted. The marshal to whom an execution was issued had made a levy, but on being served with the warrant of remission redelivered the goods to the debtors. An action was thereupon brought against him by the United States for the moiety of the penalty allowed to the officers; but the declaration alleged no interest in them, but in the United States only. The defendant pleaded the remission. The plaintiffs replied the interest of the officers. On special demurrer, held to be a departure. United States v. Morris, 1 Paine's C. C. R. 209. is bad on demurrer. Lockington v. Smith, Peters' C. C. R. 466. 33. Where objections, merely formal, are stated as causes of demurrer, a party is entitled to the benefit of the exceptions, if they are well founded. Ibid. 34. Where the defendant demurs to the bill for faults and informalities, the complainant is not entitled to have it dismissed, but must set it down for argument. Hurst v. Hurst, 1 Wash. C. C. R. 56. 35. If the plaintiff, in an action on a patent, omit to state that a patent did issue, and there is a general demurrer, it is fatal. Executors of Fulton v. Myers, Circuit Court of the United States. 36. It was a well-established rule of chancery, before the American revolution, to sustain a bill for discovery where they could not get the relief prayed for. If the plaintiff was entitled to a discovery and not to relief, the defendant must answer the former, and might demur to the latter; but a general demurrer was uniformly overruled, if the plaintiff was entitled to an answer to either. Baker v. Biddle, Baldwin's C. C. R. 409. 27. In an action by the postmaster-general against a deputy postmaster and his sureties, on the bond executed by them, the sureties pleaded that plaintiff did not, as he was bound by law 37. The assignment of breaches in an action to do, call upon his deputies to settle his accounts, on an embargo bond, is a part, and a very imor cause suits to be brought against him for not portant part of the declaration, and upon deso doing, nor did he give notice to the sureties murrer to the declaration, the plaintiff's attorney of the defaults, but fraudulently and in violation will not be permitted to strike out the assignof his duty to the United States and to the sure-ment of breaches, on the ground that the declaties, neglected to bring such actions, and to give notice. The plaintiff demurred generally. Held, that the demurrer having admitted the fraud stated in the plea, the plaintiff cannot recover. Postmaster-General v. Ustic, Potts, and Allen, 4 Wash. C. C. R. 347. 28. A plea which professes to be in bar of the whole demand, and yet is so only to a part, is bad on special demurrer. Postmaster-General Reeder, 4 Wash. C. C. R. 678. V. ration is good without it: such a course would not be tolerated in any court. Dixon v. The United States, 1 Brockenb. C. C. R. 177. 38. A demurrer is in the nature of a plea to the action, and will be considered as a plea in abatement. The court will disregard these special causes, and considering the demurrer independently of them, will decide upon it as if they had not been inserted in it. Cutler and Stacey v. Ellis and Allen, 2 Brockenb. C. C. R. 14. See PLEAS AND PLEADING. 29. If the defendant plead in bar a matter which is no defence at all, and it is found for him, still he cannot have judgment; but the court will give judgment for the plaintiff, non obstante vendictum, provided the defect in the plea is not in the form, but in the matter of it. DEPARTMENTS OF THE GOVERNMENT If it be in the form, and can be made better by any pleadings, a repleader will be awarded. The rule is the same, if the facts stated in a demurrer to evidence maintain such a plea. Ibid. 30. A demurrer in a case proceeded on under the civil law, does not prevent the party who demurred contesting the facts confessed in the demurrer, and compelling the opposite party to prove them. Crawford v. The William Penn, 3 Wash. C. C. R. 484. 31. If the declaration does not set forth a proper case, and in a correct form, the defendant may avail himself of these defects on demurrer. Bas et al. v. Steele, Peters' C. C. R. 406. 32. A plea which states matters which occurred subsequent to the institution of the suit, OF THE UNITED STATES. different departments of the government, which, There are many authorities conferred on the for their due execution, require services and duties which are not strictly appertaining to, or devolved upon, any particular officer, and which require agencies of a discretionary nature. In such cases, the department charged with the execution of the particular authority, business, or duty, has always been deemed incidentally to possess the right to employ the proper persons to perform the same, as the appropriate means to carry into effect the required end; and, also, the right, where the service or duty is an extra service or duty, to allow the person v. The United States, 15 Peters, 336. so employed a suitable compensation. Gratiot |