FLORIDA LAND TITLES.

Florida Land Titles.

survey of ten thousand acres should be located adjoining the natural object called for, there being no other to aid and control the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious, more latitude was allowed in the province of Florida, under the government of Spain. The surveyor-general having returned that the survey was made according to the grant, and in the absence of other contradictory proof, the claim was confirmed. Ibid.

meant not, as in the states of the United States,
a perfect title; but an incipient right, which,
when surveyed, required confirmation by the
governor; the duty of confirmation by the acts
of congress, is deputed to the courts of justice
of the United States, in execution of the treaty
with Spain. Ibid.

101. The same credence that was accorded to the return of the surveyor-general, by the Spanish government, is due to it by the courts of the United States. Plats and certificates, because of the official character of the surveyor-general. have accorded to them the force and character of a deposition. Ibid.

made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant. Still the power to survey, in conformity to the concessions, existed up to the change of flags. The United States v. Člarke, 16 Peters, 228.

103. Spain had the power to make grants founded on any consideration, and subject to any restrictions within her dominions. If a grant was binding on that government, it is so on the United States, the successor of Spain. All the grants of land made by the lawful authorities of the king of Spain, before the 24th of January, 1818, were, by the treaty, ratified and confirmed to the owners of the lands. Ibid.

97. A grant of five miles square, or sixteen thousand acres of land, was made by the Spanish governor of East Florida, at the mouth of the 102. A grant of fifteen thousand acres by the river Santa Lucia. The petition for the grant stated various merits and losses of the petitioner, Spanish governor of East Florida, in consideraand asked the grant of five miles square, for the tion of important services performed on behalf construction of a water saw-mill. The grant was of the government of Spain, to George Atkinson, given for the purposes mentioned, and "also confirmed by the supreme court. By the eight paying attention to the services and other mat-article of the Florida treaty, no grants of land ters set forth in the petition." No survey under the grant was made by the surveyor-general of Frida; but a survey was made by a private su veyor. The survey did not follow the calls o the grant, and no proof was given that it was ade at the place mentioned in the grant. The irvey and plat were not made according to the stablished rules relative to surveys to be made y the surveyor-general under such grants. Nor was the plat made with the proportion of land on the river, required by the regulations. The superior court of Florida held that the grant having been made in consideration of services rendered by the grantee, as well as for a water saw-mill, it was valid, without the erection of the mill; but the survey was altogether void, and of no effect. The decree of the superior court of Florida, by which the grant and survey were confirmed, was remanded to the superior court of Florida; that court to order the sixteen thousand acres granted, to be surveyed according to the principles stated in the opinion of the supreme court. It has often been held that the authorities of Spain had the power to grant the public domain, in accordance with their own ideas of the merits and considerations presented by the grantee; and that the powers of the supreme court of the United States extend only to the inquiry, whether, in fact, the grant had been nade, and its legal effect when made, in cases where the law by implication introduced a condition, or ras peculiar in its provisions. No special ordinance of Spain introduces conditions into mill grants. The United States v. Hanson, 16 Peters, 196.

98. The certificate of a private surveyor, that he had permission from the governor of the territory to make a survey of the land granted, is no evidence of the fact. There is a marked and wide difference in the effect of the certificate of the surveyor-general and of a private individual, who assumes to certify without authority. Ibid. 99. Instructions of 1811, as to the duties of the surveyor-general, in making surveys under grants, by the governors of the public lands in Spain. Ibid.

100. A grant by a Spanish governor of Florida,
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64

104. The grant to Atkinson was for the land he mentioned in his petition, or for any other lands within the quantity granted, not at the place specially mentioned in the grant, but at other places. Held, that these surveys were valid, notwithstanding that they were made at different places. Ibid.

105. A claim for eight thousand acres of land in East Florida, founded on a petition of Domingo Acosta to governor Coppinger, made on the 20th May, 1816. The petition stated that services had been performed by the claimant for the defence, support, and advancement of the town of Fernandina, which had never been awarded. Governor Coppinger gave a decree in favour of the petitioner, "it being the will of the sovereign that the merits of his subjects should be rewarded." The originals of the peti. tion and decree were not produced, they having been lost; but a certificate signed by Don Tomas Aguilar, the secretary of the government was exhibited, which stated that the copies of the petition and decree, which were given in evidence, had been faithfully drawn from the Four plats and certifi originals in his office. cates of survey, made by Clarke, surveyor of the province, two of which surveys were made before the 24th January, 1818, and one on the 14th February, 1818; another on the 20th January, 1820, were given in evidence, without objection, in the court below, to show the location of the land claimed. The decree of the supe

Florida Land Titles.

the sufficiency of the proof, or the authenticity | the certificate of a copy of the gra
of the acts relating to the title, which had been vernor of East Florida, authorizes
admitted by the authorities in Florida, which in evidence; but this does not est
was the tribunal to judge of the evidence. Ibid. lidity of the concession. To tes
84. Breward petitioned the governor of East the survey, it was necessary
Florida, intending to establish a saw-mill to saw dence; but the survey did r
lumber on St. John's river, for a grant of five to the land. Ibid.
miles square of land, or its equivalent, ten thou- 91. The United States ha
sand acres to be in the neighbourhood of the a survey made by the st
place designated, and the remaining six thou-survey on the ground do
sand acres in Cedar Swamp, on the west side of land granted. Ibid.
St. John's river, and in Cabbage Hammock, on
the east side of the river. The governor granted
the lands asked for, on the condition that the
mill should be built; and the condition was
complied with. On the 27th of May, 1817, the
surveyor-general surveyed seven thousand acres
under the grant, including Little Cedar Creek,
and bounded on three sides by Big Cedar Creek,
including the mill. This grant and survey were
confirmed. The United States v. Breward, 16
Peters, 143.

92. On a petition fre
services performed
White, the governo
November, 1810, 1
leagues square, o
thousand, six h
on the waters
in the easter
was made
mained a f
tempt mad
85. Three thousand acres were laid off on the after the c
northern part of the river St. John's and east of In 1821,
the Royal Road, leading from the river to St. by a sur
Mary's, four or five miles from the first survey.grant v
This survey having been made at a place not from
within the grant, was void; but the court held Janu
that the grantee is to be allowed to survey under are t
the grant three thousand acres adjoining the The
survey of seven thousand acres, if so much
vacant land can be found; and patents for the in
same shall issue for the land, if laid out in con-b
formity with the decree of the court in this case.
Itiu.

8. In 1819, two thousand acres were surveyed in Cedar Swamp, west of the river St. John's at a place known by the name of Sugar Tow this survey was confirmed. Ibid.

87. Four thousand acres, by survey, da April, 1819, in Cabbage Hammock, were out by the surveyor-general. This survey confirmed. lbid.

88. By the eighth article of the Florida all grants of lands made before the 24th uary, 1824, by his Catholic Majesty, w firmed; but all grants made since the t the first proposal by his Majesty for t of the country was made, are declared by the treaty to be void. The su thousand acres having been made place from the land granted, wou' ed, be a new appropriation of so I void, if it had been ordered by Florida; and of course it is voi to uphold it but the act of the Cited, 10 Peters, 309. Ibid.

89. In the superior court o counsel for the claimant o testimony in regard to the s sand acres; and the counse withdrew his objections to admission of the evidenc vey to have been made. of the surveyor-general made the survey prima Mrs. Wiggins's case, 1 90. The proof of th

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rst suit, the decree Dar, and the demurrer ruled. Manken v. John ckenb. C. C. R. 125.

at in error had sued out an er the law of Maryland, against and had filed an account against rry, said to have been assumed by rry, the plaintiff in error. Robert ppeared, gave special bail, and disd the attachment. The plaintiff below filed a declaration of "indebitatus assump"for money had and received,” and for Jods sold and delivered," to which Robert Barry pleaded the general issue. The panies went to trial, and a verdict and judgment were e rendered for the defendant in error. The court a attaches no importance to the variance between Jant the account filed when the attachment issued, o do, and the declaration filed after the attachment was dissolved, by the entry of bail, and the apof the pearance of the defendant. The defendant United having pleaded to the declaration, the cause stood as if the suit had been brought in the usual manner, and no reference can be had to the proceedings on the attachment. Barry v. Foyles, 1 Peters, 315.

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5. Under the foreign attachment law of Pennsylvania, a foreign attachment may be laid on property in the hands of the plaintiff in the attachment. Graighle v. Nottnagle & Montmollin,

Peters' C. C. R. 345.

6. The forms of proceedings under the foreign attachment laws of Pennsylvania are as follow. They commence with the ordinary writ of attachment, which is served on the goods and chattels of the debtor in whose hands soever of possession the same may be found, or upon any person who may be indebted to the defendant in the attachment. Upon the return of the writ,

On the 14th September, 1807, a foreign chment was laid on the property of L., in the nds of the defendant; on the 19th of Septemer, the defendant received goods belonging to L., who, at that time, was under acceptances of bills endorsed by L., and which on their protest, for non-payment by L., the defendant paid." inst The attachment entitled the plaintiff to the proand ceeds of the goods in the hands of the defendants, notwithstanding his liability for, and his laid on subsequent payment of the bills endorsed by plaintiff in him. Taylor v. Gardner, 2 Wash. C. C. R. 488. the effects 16. The plaintiff issued a foreign attachment of the judg-against the defendant, a merchant of Canton, for defendant is al- the recovery of damages, to the amount of four aintiff to traverse thousand five hundred dollars, upon a promise he debt, recovered made by him, for a valuable consideration, to deliver to the plaintiff a quantity of tea of a cerwrit of foreign attach-tain quality, which promise he had not complied he laws of New Jersey, with, but had broken. By the court:-The law ime on the property of of Pennsylvania, of 1705, has received a liberal tachment. After the at- construction in the courts of the state, so as to the plaintiff took the pro- extend its remedies to debts contracted in fo e defendant for his debt, reign countries, by persons who never resided in time; but no notice of this the state. The levy is remedial, and ought to e claim of the plaintiff was be so construed as to remove the mischief which ff, nor was the suit on which is spoken of. Fisher v. Consequa, 2 Wash. C. C. issued discontinued. The de- R. 382. ht replevin for the property at17. To constitute such a debt as may be pursheriff having refused to redeliver sued by a foreign attachment, under the law of at the sheriff was not responsible | Pennsylvania, the demand must arise under a the attachment for the debt so satis- contract, without which no debt can be created. or refusing to redeliver the property and the measure of the damages must be such 1. Livingston v. Smith, 5 Peters, 90. as the plaintiff can aver, by affidavit, to be due. A previous attachment, issued under the without which, special bail cannot regularly be New Jersey, of property as the right of demanded. Ibid. er, could not divest the interest of the acowner of the property in the same, so as to event the sheriff attaching the same property nder a writ of attachment issued for a debt of the same actual owner. Ibid.

13. The language of the foreign attachment law of the state of Pennsylvania, seems to require that the specific property attached should be taken into possession by the officer, unless the garnishee will give security therefor. At all

18. The remedy by foreign attachment wit not lie for demands which arise, ex delicto, or where special bail cannot regularly be required. Ibid.

19. The promise of the defendant to deliver teas of a certain quality, was not complied wita; and as the plaintiff swore that the difference bo tween the teas promised and those delivered amounted to a particular sum; a foreign attack ment lies. Ibid.

Foreclosure of a Mortgage.—Foreign Attachment.

rior court of Florida, in favour of the claim- | cording to the course of ordinary actions. Golds ant, was affirmed. The United States v. Acosta, borough v. Orr, 8 Wheat. 217; 5 Cond. Rep 17 Peters, 16.

Foreign Attachment.

the garnishee is to enter an appearance, which events, the law provides, positively, that the prois generally by attorney, unless a clause of perty shall remain in his power. The reasonacapias has been inserted in the writ, in which ble construction of the act would seem to be, case he must give bail for his appearance. that if the officer leaves the property in posses Judgment by default is then entered against the sion of the garnishee without security, he is himdefendant at the third term, as a matter of self answerable for the forthcoming, and in the course. After this a scire facias issues against mean time he retains the power to remove the the garnishee, to show cause why the plaintiff effects. The possession of the garnishee must shall not have execution against him, of the de-be virtually his possession; and thus the power fendant's property attached in his hands. To of the officer over the attached effects which the this writ the garnishee may plead the general law requires, would be preserved. Brashear v. issue, nulla bona; or any special matter tending West et al., 7 Peters, 621. to show that the effects in his hands or the debt due by him ought not to be condemned. If the issue is found against the garnishee, or if he should not appear and plead, judgment is rendered against him. In aid of this process, the plaintiff may compel the garnishee to answer on oath to interrogatories to be propounded to him, calculated to draw from him a discovery of the property of the defendant he may have in his hands, and of the debts which he may owe him. Ibid. 346. 15. On the 14th September, 1807, a foreign 7. Where the garnishee is plaintiff in the at-attachment was laid on the property of L., in the tachment, the summons, scire facias, interroga. hands of the defendant; on the 19th of Septemtories, or any coercive process, is not necessary. ber, the defendant received goods belonging to Ibid. 345. L., who, at that time, was under acceptances of bills endorsed by L., and which on their protest, for non-payment by L., the defendant paid. The attachment entitled the plaintiff to the proceeds of the goods in the hands of the defendants, notwithstanding his liability for, and his subsequent payment of the bills endorsed by him. Taylor v. Gardner, 2 Wash. C. C. R. 488.

8. Lands are subject to foreign attachment in Pennsylvania. Ibid.

9. In proceedings of foreign attachment against lands in Pennsylvania, there is no garnishee, and execution goes against the lands. Ibid.

10. Where a foreign attachment is laid on property or debts in the hands of the plaintiff in the attachment, the plaintiff retains the effects to satisfy his debt in consequence of the judgment; but in such a case the defendant is allowed in an action against the plaintiff to traverse the plea, and thus to contest the debt, recovered n the attachment. Ibid.

14. Where the plaintiffs in a foreign attac ment consented to the sale of the propertv attached, and the same was sold by the garnishes who received the proceeds of the sale, and afterwards became insolvent, and thus a total loss of the property and the proceeds was producea. the supreme court held that the plaintiffs in the attachment were legally responsible to the defendant in the attachment. Pennsylvania. Ibid 622.

16. The plaintiff issued a foreign attachment against the defendant, a merchant of Canton, for the recovery of damages, to the amount of four thousand five hundred dollars, upon a promise made by him, for a valuable consideration, to deliver to the plaintiff a quantity of tea of a cer11. A sheriff, having a writ of foreign attach-tain quality, which promise he had not complied ment issued according to the laws of New Jersey, with, but had broken. By the court:-The law proceeded to levy the same on the property of of Pennsylvania, of 1705, has received a liberal the defendant in the attachment. After the at- construction in the courts of the state, so as to tachment was issued, the plaintiff took the pro- extend its remedies to debts contracted in fo missory notes of the defendant for his debt, reign countries, by persons who never resided in payable at a future time; but no notice of this the state. The levy is remedial, and ought to adjustment of the claim of the plaintiff was be so construed as to remove the mischief which given to the sheriff, nor was the suit on which is spoken of. Fisher v. Consequa, 2 Wash. C. C. the attachment issued discontinued. The de-R. 382. fendant brought replevin for the property attached, the sheriff having refused to redeliver it. Held, that the sheriff was not responsible for levying the attachment for the debt so satisfied, or for refusing to redeliver the property attached. Livingston v. Smith, 5 Peters, 90.

12. A previous attachment, issued under the law of New Jersey, of property as the right of another, could not divest the interest of the actual owner of the property in the same, so as to prevent the sheriff attaching the same property under a writ of attachment issued for a debt of the same actual owner. Ibid.

17. To constitute such a debt as may be pur sued by a foreign attachment, under the law of Pennsylvania, the demand must arise under a contract, without which no debt can be created. and the measure of the damages must be such as the plaintiff can aver, by affidavit, to be due. without which, special bail cannot regularly be demanded. Ibid.

18. The remedy by foreign attachment will not lie for demands which arise, ex delicto, or where special bail cannot regularly be required. Ibid.

19. The promise of the defendant to deliver teas of a certain quality, was not complied wità; and as the plaintiff swore that the difference bo tween the teas promised and those delivered amounted to a particular sum; a foreign attack

13. The language of the foreign attachment law of the state of Pennsylvania, seems to require that the specific property attached should be taken into possession by the officer, unless the garnishee will give security therefor. At allment lies. Ibid.