Disability of Aliens. of common law jurisdiction, or those which proceed according to the law of nations and of war. It is sufficient that they be alleged in the pleadings to be alien enemies; for if, being so, they are entitled to any special exemption, they must exhibit evidence of it. Johnson v. Merchandise, 6 Hall's Law Journal, 97. of two acres on the bank of the river, on which | own country, cannot maintain any action in the the said brick-house is erected, belongs to my- courts of the other belligerent, either in those self, son Hartwell, and James H. Center, when Center pays his part. I wish my executors furthermore to remember, that the town lots now laid off, and hereafter to be laid off, on the aforementioned two hundred acres of land, should be sold to pay my just debts, or any other engagements, in preference to any other of my property, for the use and benefit of all my heirs; and that James H. Center have a title made to him for one lot already laid off, of half an acre, in said two hundred acres, on which he has builded, when he pays to my executors the sum of three hundred dollars." By the will, the lots which remained in the town laid off on the two hundred acres were to be sold for the benefit of all the heirs, after the debts of the testator had been paid. Larer v. Vick, 2 Howard, 464. 3. A person born in the colony of New York, in 1760, of Irish parents, who went to Ireland, in 1771, where he was educated, and served his apprenticeship, and remained in the British dominions until 1795, when he came to the United States, is an alien. Hollingsworth v. Duane, Wallace's C. C. R. 51. 4. An alien enemy cannot be permitted to make the declaration required by law, preparatory to the naturalization of aliens. Ex parte Newman, 2 Gallis. C. C. R. 11. 102. An executor who married the devisee 5. A person beneficially interested in a suit, of certain property, and who had the manage- if an alien enemy, cannot maintain a suit in the ment of the estate, held the estate not as de- circuit court of the United States, in the name visee but as executor, and not as the husband of his trustee, who is not an alien. But it is of the devisee. Price v. Sessions, 3 Howard, 624. otherwise, if the contract out of which the suit 103. None of the property could be delivered originated arose out of a trade licensed by the to the devisee by the executor, until the provi-government, in whose courts redress is sought. sions of the will were accomplished. Ibid. Crawford v. The William Penn, Peters' C. C. R. 106. 104. The testator devised land to his wife and son, provided his wife should retain possession and occupation of the land until the son arrived at the age of fifteen years. The son died before he attained that age. Held, that the wife was entitled to hold the land until the time when the son, if he had lived, would have been fifteen years old. Zoller's Lessee v. Eckert, 4 Howard, 289. DISABILITY OF ALIENS. 6. An alien enemy cannot sustain a suit in the courts of the United States. Mumford v. Mumford, 1 Gallis. C. C. R. 366. 7. The courts of the United States have no jurisdiction where both parties are aliens. Montalet v. Murray, 4 Cranch, 46; 2 Cond. Rep. 19. 8. An alien does not lose his right to sue in the courts of the United States, by his residence in a state of the Union. Breedlove et al. v. Nicolet et al., 7 Peters, 413. 10. A person born in England, before the year 1775, and who always resided there, and never was in the United States, is an alien; and could not, in 1793, take lands in Maryland from a citizen of the United States. Ibid. 124. 9. Maryland. The law of Maryland, accord1. Villato, a Spaniard by birth, came to Penn- ing to the common law of England, does not sylvania in 1793, and took an oath of allegiance give the right to inherit lands, distinct from the before the mayor of the city of Philadelphia, obligation of allegiance existing either in fact or under the provisions of an act of the legislature supposition of law. Dawson's Lessee v. Godfrey, of that state, passed on the 13th March, 1789.4 Cranch, 321; 2 Cond. Rep. 125, 126. The first naturalization act was passed by congress in 1790. By the operation of the constitution of the state of Pennsylvania, adopted after the law of 1789, and the naturalization law of 1790, the Pennsylvania law was abrogated; and at the time of the taking of the oath of allegiance by Villato, the law under which it was administered did not exist. Villato, after taking the oath in 1793, went to the West Indies, entered on board a French privateer, and acted as prize-master of the American brig John, of New York, which had been captured by the privateer while he was on board of her, and he procured the John to be libelled and condemned as prize at Cape François. He was indicted for treason against the United States, in the circuit court of Pennsylvania. The court held, that the law under which Villato took the oath of allegiance not being in force, he could not be guilty of treason. United States v. Villato, Circuit Court of the United States for Pennsylvania, 2 Dall. Rep. 13. In respect to these general rights and dis370, 373. abilities as to real property, there is no difference 2. Alien enemies, who are commorant in their | between alien friends and alien enemies. Ibid. 48* 11. There is no distinction, whether the purchase be by grant or by devise; in either case, the estate vests in the alien, not for his own benefit, but for the benefit of the state; or, in the language of the ancient law, he has the capacity to take, but not to hold lands; and they may be seised into the hands of the sovereign. Fairfax's Devisee v. Hunter, 7 Cranch, 603; 2 Cond. Rep. 622. 12. It seems indeed to have been held, that an alien cannot maintain a real action for the recovery of lands; but it does not thence follow that he may not defend, in a real action, his title to the lands, against all persons but the sovereign. Ibid. 3 W Disability of Aliens. 14. The title acquired by an alien, by purchase, is not divested until office found; the principle is founded upon the ground, that as the freehold is in the alien, and he is tenant to the lord of whom the lands are holden, it cannot be divested out of him, but by some notorious act; by which it may appear that the freehold is in another. Ibid. 15. New Jersey. A person born in the colony of New Jersey, before the year 1775, and residing there until the year 1777, but who then joined the British army, and ever since adhered to the British, claiming to be a British subject, and demanding and receiving compensation from that government for his loyalty and sufferings as a refugee, has a right to take lands by descent, in the state of New Jersey. M'Ilvaine v. Cox's Lessee, 4 Cranch, 209; 2 Čond. Rep. 86. 16. The alienage of the vendee is not a sufficient ground to entitle the vendor to a decree rescinding a contract for the sale of lands; though perhaps it might afford a reason for denying a specific performance, as against the vendee. Hepburn et al. v. Dunlop et al., 1 Wheat. 179; 3 Cond. Rep. 529. within the state, by purchase or descent, in fee simple, and to sell and dispose of the same as a natural born citizen. The defendant still continued a British subject. Held, that he was entitled to hold lands so devised to him by G. C., and transferred by E. C. Jackson v. Clarke, 3 Wheat. 1; 4 Cond. Rep. 188. 21. Where a person dies, leaving issue, who are aliens, they are not deemed his heirs at law; but the estate descends to the next of kin who have inheritable blood; in the same manner as if no such alien was in existence. Orr v. Hodgson, 4 Wheat. 453; 4 Cond. Rep. 506. 22. British subjects born before the revolution, are equally incapable with those born after it, of inheriting or transmitting the inheritance of lands in the United States. Blight's Lessee v. Rochester, 7 Wheat. 535; 5 Cond. Rep. 335. 23. A person born in New York before the 4th of July, 1776, and who remained an infant with his father in the city of New York during the period it was occupied by the British troops; his father being a royalist, and having adhered to the British government, and left New York with the British troops, taking his son with him, who never returned to the United States, but after in Nova Scotia ; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance in the state of New York. Inglis v. The Trustees of the Sailors' Snug Harbour, 3 Peters, 99. 17. The statutes eleven and twelve William III., ch. 6, which are in force in Maryland, re-wards became a bishop of the episcopal church move the disability of claiming title by descent, through an alien ancestor, but do not apply to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor was a natural born subject. MCreery's Lessee v. Somerville, 9 Wheat. 354; 5 Cond. Rep. 608. 18. Thus where M. died seised of lands in Maryland, intestate and without issue, leaving a brother R., an alien, and three daughters, nieces of R., who were natural born citizens of the United States, it was held that they could not claim as heirs to M., through R., their father, he being an alien and still living. Ibid. 19. Under the ninth article of the treaty between the United States and Great Britain, of 1794, it is not necessary for the alien to show that he was in the actual possession or seisin of the land, at the date of the treaty; because the treaty applies to the title, whatever that might be; and gives it the same legal validity as if the parties were citizens. The title of an alien mortgagee is protected by the treaty. Hughes et al. v. Edwards et ux., 9 Wheat. 489; 5 Cond. Rep. 648. 20. New York.-G. C., born in the colony of New York, went to England in 1738, and resided there until his decease; and being seised of lands in New York, on the 30th November, 1776, he devised the same to the defendant in the ejectment, and E. C., as tenants in common, and he died so seised of the property, in December, 1776. The defendant, and E. C. having entered on the land, E. C., in December, 1791, sold to the defendant his interest. The defendant, and E. C., were both born in England, before the revolution. On the 22d of March, 1791, the legislature of New York passed an act to enable the defendant to purchase lands, and to hold all other lands to which he might then be entitled, 24. If such a person had been born after the 4th of July, 1776, and before the 15th of September, 1776, when the British troops took possession of the city of New York and the adjacent places, his infancy incapacitated him from making an election for himself; and his election and character followed that of his father; subject to the right of disaffirmance, in a reasonable time after the termination of his minority; which never having been done, he remained a British subject, and disabled from inheriting land in the state of New York. Ibid. 126. 25. The rule as to the point of time at which the American ante nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. The American rule is to take the date of the declaration of independence. Ibid. 121. 26. The settled doctrine in this country is, that a person born here, but who left the coun try before the declaration of independence, and never returned here, became an alien, and incapable of taking lands subsequently by descent. The right to inherit depends upon the existing state of allegiance at the time of the descent cast. Ibid. 121. 27. The doctrine of perpetual allegiance is not applied by the British courts to the American ante nati; and the supreme court, in the case of Blight's Lessee v. Rochester, 7 Wheat. 544, adopted the same rule with respect to the rights of British subjects here. That, although born before the revolution, they are equally incapable DISCONTINUANCE OF A CAUSE, &c. with those born subsequent to that event, of inheriting or transmitting the inheritance of lands in this country. Ibid. 28. The British doctrine therefore is, that the American ante nati, by remaining in America after the peace, lost their character of British subjects; and the American doctrine is, that by withdrawing from this country and adhering to the British government, they lost, or perhaps more properly speaking, never acquired the character of American citizens. Ibid. 122. 29. The right of election must necessarily exist in all revolutions like the American revolution, and is well established by adjudged cases. Ibid. general principles of interpretation, to be held 36. The capture and possession of James' island in February, 1780, and of Charleston_on the 11th of May, in the same year, by the British troops, was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspended their former allegiance. Ibid. 246. 37. The marriage of Ann Scott with Shanks, a British officer, did not change or destroy her allegiance to the state of South Carolina; because marriage with an alien, whether friend or enemy, produces no dissolution of the native al 30. The court in the case of M'Ilvaine's Lessee v. Coxe, 4 Cranch, 211, fully recognised the right of election; but they considered that Mr.legiance of the wife. Ibid. Coxe had lost that right by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she declared him to be a member of, and in allegiance to the new government. Ibid. 124. 31. Thomas Scott, a native of South Carolina, died in 1782, intestate, seised of land on James' island, having two daughters, Ann and Sarah, both born in South Carolina before the declaration of independence. Sarah married D. P., a citizen of South Carolina, and died in 1802, entitled to one-half of the estate. The British took possession of James' island and Charleston in February and May, 1780; and in 1781 Ann Scott married Joseph Shanks, a British officer; and at the evacuation of Charleston in 1782, she went to England with her husband, where she remained until her death in 1801. She left five children born in England. They claimed the other moiety of the real estate of Thomas Scott, in right of their mother, under the ninth article of the treaty of peace between this country and Great Britain, of the 19th of November, 1794. Held, that they were entitled to recover and hold the same. Shanks et al. v. Dupont et al., 3 Peters, 242. 32. Under the laws of New York, one citizen of the state cannot inherit in the collateral line to the other, when he must make his pedigree or title through a deceased alien ancestor. Lessee of Levy v. M'Cartee, 6 Peters, 102. 33. That an alien has no inheritable blood, and can neither take land himself by descent, nor transmit land from himself to others by descent, is common learning. Ibid. 34. If Ann Scott was of age before December, 1782, as she remained in South Carolina until that time, her birth and residence must be deemed to constitute her by election a citizen of South Carolina, while she remained in that state. If she was not of age then, under the circumstances of this case, she might well be deemed to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his natural character as a citizen of that country. Shanks v. Dupont, 3 Peters, 245. 38. The subsequent removal of Ann Shanks to England with her husband, operates as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown by the treaty of peace in 1783. Ibid. DISCONTINUANCE OF A CAUSE. Where the jury omitted to find on one of the counts in the indictment, the court permitted it to be discontinued. United States v. Keen, 1 M'Lean's C. C. R. 429. DISCONTINUANCE OF A CAUSE CERTI- 1. On the trial of a cause in the circuit court of the district of Maine, upon certain questions which arose in the progress of the trial, the judges of the court were divided in opinion, and the questions were, at the request of the plaintiff, certified to the supreme court, to January term, 1835. In December, 1836, the plaintiff filed, in the office of the clerk of the circuit court of Maine, a notice to the defendant, that he had discontinued the suit in the circuit court, and that as soon as the supreme court should meet at Washington, the same disposition would be made of it there, and that the costs would be paid when made up. A copy of this notice was given to the counsel of the defendants. The plaintiff's counsel asked the court for leave to discontinue the cause, and the discontinuance was allowed. Veazie v. Wadleigh et al., 11 Peters, 55. 2. Query, Whether the party on whose motion questions are certified to the supreme court, under the act of congress, has a right, generally, to withdraw the record, or discontinue the case in the supreme court; the original cause being detained in the circuit court for ulterior pro 35. All British born subjects whose allegiance Discount.-Discovery.-Disseisin. DISCOUNT. 1. The taking of interest in advance upon the discount of a note in the usual course of business by a banker, is not usury. This has been long settled, and is not now open for controversy. Thornton v. The Bank of Washington, 3 Peters, 40. 2. The taking of interest for sixty-four days on a note is not usury, if the note given for sixty days, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day. In the case of Renner v. The Bank of Columbia, 9 Wheat. 581, it was expressly held, that under that custom the note was not due and payable before the sixty-fourth day; for until that time the maker could not be in default. Ibid. 3. Where it was the practice of the party who had a sixty day note discounted at the Bank of Washington, to renew the note by the discount of another note on the sixty-third day, the maker not being in fact bound to pay the note according to the custom prevailing in the District of Columbia, such a transaction on the part of the banker was not usurious, although on each note the discount for sixty-four days was deducted. Each note is considered as a distinct and substantive transaction. If no more than legal interest is taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note before it comes due, does not of itself make the transaction usurious. Something more must occur. There must be a contract between the bank and the party at the time of such discount, that the party shall not have the use and benefit of the proceeds until the former note becomes due; or that the bank shall have the use and benefit of them in the mean time. Ibid. DISCOVERY. 1. The principle adopted by the European nations, in relation to the continent of America, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all European governments; which title might be consummated by possession. Johnson v. M'Intosh, 8 Wheat. 543; 5 Cond. Rep. 528. 2. The exclusion of all other Europeans, necessarily gave to the government of the nation making the discovery, the sole right of acquiring the soil from the natives, and making settlements on it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to which assertion by others, all assented. The relations which existed between the natives and the discoverers, were regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. Ibid. DISSEISIN. 1. Where two persons are in possession of lands by an imperfect or tortious title, as by disseisin, a release of one will enure to the benefit of both. Flagg v. Mann, 2 Summer's C. C. R. 487. 2. A disseisor in possession has a lawful estate, which he may alien; and his alienee will have a good title as against all persons not hav ing a paramount title. Ibid. 3. It is a general rule that a disseisor cannot qualify his own wrong, but must be considered a disseisor in fee. But this rule is introduced for the benefit of the disseisee, to enable him to elect his remedy; and it must appear that the party found in possession, entered without right; for if his entry was congeable, or his possession lawful, his entry and possession will be consi dered as limited by his right. Ricard v. Williams, 7 Wheat. 59; 5 Cond. Rep. 237. 4. One heir, notwithstanding his entry as heir, may afterwards, by disseisin of his co-heirs, acquire an exclusive possession, upon which the statute will run against him. Ibid. 5. Where a party is disseised, he cannot convey his title to the premises of which he is dis seised, by a quit-claim deed. Wakefield v. Ross, 5 Mason's C. C. R. 18. 6. 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 a 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, 320. 7. One tenant in common may disseise another; if a person enter into possession, claiming title to the entirety under a deed, and the title turns out to be defective as to a moiety, it is a disseisin of the parties entitled to that moiety. Prescott v. Nevers, 4 Mason's C. C. R. 326. 8. Where a person enters into possession under a recorded deed, claiming title to entirety, and exercises acts of ownership, it is a disseisin of all persons who claim title to the same land, to the extent of the boundaries in the deed. Ibid. 9. One tenant in common may oust his co-tenant, and hold in severalty; but a silent possession, accompanied by no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not to be construed into an adverse possession. MClung v. Ross, 5 Wheat. 116; 4 Cond. Rep. 603. 10. The possession of a disseisor, to bar the plaintiff, cannot extend beyond the limits of the particular spot occupied by him; and the legal possession of the right owner continues unaffect ed as to the residue, by such partial tortious pos session. Lessee of Potts v. Gilbert, 3 Wash. C. C. R. 475. 11. New York.-The circumstance, that one took possession of unoccupied lands as contract Distillation.-Distribution of Prizes. or, to transport for the government to and from a fort on the frontiers; and that his claim comprehended the fort itself, as well as the land around it; and that his improvements were necessary in the performance of his contract, were considered evidence that he did not hold in hostility, but in subordination to the rights of the crown. Fisher v. Harnden, 1 Paine's C. C. R. 55. 12. 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. 13. If one enter into possession under a belief that he has a limited lawful right, as under a lease, which turns out to be void; or as a special occupant, when he is not entitled so to claim; if he be a disseisor at all, it is only at the election of the disseisee. There is nothing in the law which prevents the disseisee from considering such a person as a mere trespasser; or which makes such an entry under mistake for a limited right, a disseisin in fee absolutely and at all events, so that a descent cast would toll the entry of the disseisee. Ricard v. Williams, 7 Wheat. 59; 5 Cond. Rep. 237. within the meaning of the act of congress of 24th July, 1813. United States v. Tenbroek, Peters' C. C. R. 180. 2. The act of congress of 24th July, 1813, imposing a duty according to the capacity of the still, on all stills employed in distilling spirits from domestic or foreign materials, and inflicting a penalty of one hundred dollars, and double duties, for using any still or stills, or implements in distilling spirituous liquors, without first obtaining a license, as required by the act, does not extend to the rectification or purification of spirits already distilled. United States v. Tenbroek, 2 Wheat. 248; 4 Cond. Rep. 109. DISTRIBUTION OF PRIZES. 1. A court of prize will take cognizance not only of questions of prize, but of every incident thereto, until a final adjustment of all claims arising from the capture. It will, therefore, entertain a supplementary suit for the disposition of the proceeds of the prize. Where the proceeds have been paid to the prize agent, and the cause is no longer pending, the proper jurisdiction is the district court. While the proceeds remain in the district court, application may be made there to compel distribution. The St. Lawrence and Cargo, 2 Gallis. C. C. R. 19. 2. The prize act, authorizing the marshal to make distribution, does not narrow this jurisdiction. Ibid. 14. 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 3. Upon mature reflection and on the authoriqualifications. For if the true owner be at the ties, the circuit court of Massachusetts is fully same time in possession of part of the land, satisfied that all questions relative to prize proclaiming title to the whole, then his seisin ex-perty, and, of course, all incidental claims upon tends, by construction of law, to all the land it by reason of the capture, properly belong to which is not in the actual possession or occu- the court having possession of the property, pancy, by enclosure or otherwise, of the party either actually, or in contemplation of law, so claiming under a defective deed or title. through prize agents; or having a right to call Clark v. Courtney, 5 Peters, 319. for the property, in order to execute its decrees, and enforce the rights of the parties connected with the proceedings: and it is perfectly immaterial whether the court possesses the power of original jurisdiction, or appellate. Ibid. 15. 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 be presumed in favour of such a naked possession; but that when a party entered under a title adverse to the plaintiff, it was an ouster of, and an adverse possession to the true owner. The doctrines recognised by the supreme court are in harmony with those established by the authority of other courts, especially by the court of Kentucky. Bradstreet v. Huntington, 5 Peters, 402. 16. The common law generally regards disseisin as an act of force, and always as a tortious act; yet out of regard to having a tenant to the precipe, and one promptly to do service to the lord, it attaches to it a variety of legal rights and incidents. Ibid. DISTILLATION. 1. A rectifier of spirits, distilled from domestic materials is not a distiller of spirituous liquors 4. All captures made by noncommissioned captors, are made for the government: and since the provisions in the prize acts, as to the distribution of prize proceeds, are confined to public and private armed vessels, cruising under regular commission, the only claim which can be sustained by such noncommissioned captors, must be in the nature of salvage, for bringing in and preserving the property. The Dos Hermanos, 10 Wheat. 306; 6 Cond. Rep. 109. 5. The commander of a squadron, to whose command a ship of war is attached, and under whose orders she sails, is entitled to the flagtwentieth of all prizes made by such ship; although the other part of the squadron may never have sailed on the cruise, in consequence of a blockade by a superior force. Decatur v. Chew, 1 Gallis. C. C. R. 506. 6. To deprive such commander of his flagtwentieth, on account of his having left his station, under the sixth section of the act of April |