Guardian and Ward. not amount to a sufficient sum to authorize an appeal to the supreme court, from a circuit court of the District of Columbia. Ritchie v. Mauro and Forrest, 2 Peters, 243. 2. An administratrix, after a decree of the probate court ascertaining the distributary shares of the intestate estate, took guardianship of one of the persons entitled to a share, who was a minor; it was held, that, by operation of law, she held the amount by way of retainer, as guardian, and not as administratrix; and that no suit lay against her sureties upon the administration bond for the amount due her ward. Taylor v. Deblois, 4 Mason's C. C. R. 131. 3. The courts of probate of Rhode Island cannot appoint a guardian to a person as incapable of taking care of her estate under the statute of 1798, p. 316, without notice to the party of an adjudication on the facts. Smith v. Burlingame, 4 Mason's C. C. R. 121. 4. If an administrator be at the same time guardian of the distributees or legatees, and receive foreign assets, and do not inventory or account for them, or procure any settlement of them in the probate court, and a distribution of them according to law, he will be deemed to receive them as administrator, and not to retain them as guardian. Some act of admission, showing a retainer as guardian, as an accounting in the probate office as guardian for the same, is necessary to exonerate him as administrator. Pratt v. Northam, 5 Mason's C. C. R. 95. of the heir or devisee, under this construction of the act, as of a statutory guardian, who had given bond, binding his heirs. Black v. Scott, 2 Brockenb. C. C. R. 325. 6. The twelfth section of the act concerning guardians, &c., before cited, having declared that "the estate of a guardian, or curator, &c., shall, &c., be liable for whatever may be due from him or her, on account of his or her guardianship, &c., before any other debt, &c.;" although it gives priority, and creates liability if it did not before exist, can apply only to real estate, in a condition to be reached by other debts. The language of the section is comparative, comparing the charge it creates with other charges, and giving it the priority over them. Before the passage of the act against fraudulent devisees, lands devised were not liable for any debt whatever, and that statute expressly protects devisees for the payment of debts, and declares them valid; it protects the trust, and leaves the estate to its operation. The act of assembly applies to legal and not to equitable assets. Wherever real estate is made equitable assets by the will, the equitable principle must prevail, and the ward is entitled only to his proportion of the fund arising from the general estate of the guardian. Ibid. court of equity will sanction the contract, espe cially if it appears to have been beneficial to the ward. Ronald's Heirs v. Barkley et al., 1 Brock. C. C. R. 356. 7. It is within the scope of the general powers of a guardian to make a lease of the lands of his ward and remove incumbrances therefrom; and if a guardian convey certain lands of his ward 5. The word "estate," in the twelfth section of in trust to secure a debt, for which other lands the act of the legislature of Rhode Island, con- of the ward are bound by an elegit, and thus cerning guardians, &c., must be construed to ap-discharge the latter from the incumbrance, a ply only to the real estate of the guardian; for if it were applicable to the personalty also, it would give the ward the priority on the personal estate, over persons who are by the section respecting wills, &c., expressly placed on an equal footing with him. But this act gives the priority to the debt due to the ward, to any bond debt due from the testator or intestate, on his own account. But this statute does not create a lien on the lands of the guardian, for that would bind them in the hands of a purchaser. To give it such an interpretation would violate the general policy of the law, in setting up a secret lien in restraint of alienations; and is not required by any express words of the act, or any necessary construction of it. But though this act does not create a lien on the guardian's lands, it does create a liability of the heir, or devisee, to pay the debt due to the ward or guardianship account, in consideration; and to the amount of the land descended or devised, and does not merely give the preference to an existing liability. The words in the section "the estate of a guardian or curator, appointed under this act, shall be liable, &c.," although the comma in the printed code is placed after the word "curator," must be read as if it were placed after the word "guardian," so as to bind the lands of all guardians, and not merely "guardians appointed under this act," or statutory guardians. Thus the debt due to a ward of a testamentary guardian, who was not required to give bond, would as effectually bind his lands in the hands 8. By the law of Virginia, it is provided that the "estate of a guardian or curator, appointed under the act, not under a specific lien, shall, after the death of such guardian or curator, be liable for whatever may be due from him or her on account of his or her guardianship, or his or her ward, before any other debt due from him or her (see act concerning guardians, &c., 1 Rev. Co., ch. 108, sec. 12, p. 408), and that the executors or administrators of a guardian, or a committee, or of any other person who shall have been chargeable with, or accountable for the estate of a ward, idiot or lunatic: or the estate of a dead person, committed to their testator or intestate, by a court of record, shall pay so much as shall be due from the testator or intestate, to the ward, idiot or lunatic, or to the legatees or persons entitled to distribution, before any proper debt of their testator or intestate." Held, that the twelfth section of the law concerning guardians, and the sixtieth section of the act concerning wills, &c., having both been passed at the same session of the legislature, and being in pari materia, must be considered in connexion, as if they were parts of the same act: that the latter section applies only to executors and adminis trators, in the administration of the effects of their testator or intestate, that come to their hands in their official character, giving priority Grand Jury.-Grant. 156. to debts due to a ward, or idiot, or lunatic, or the United States v. Hill et al., 1 Brockenb. C. C. R. estate of a dead person, &c., over all others, but | placing them all on the same footing with reference to each other. Black v. Scott, 2 Brock. C. C. R. 325. 3. The accused may take exception to the panel of the grand jury when it is called over by the clerk of the circuit court, at the opening of the court. This is the proper time for an exception. 1 Burr's Trial, 31, 37. 4. The marshal is authorized by the law of Virginia to summon twenty-four grand jurymen. If twenty-five persons are summoned, the twenty-fifth must be struck off. The twenty-four first summoned constitute the grand jury, of whom sixteen are a quorum. If the panel has been completed by the marshal, and deficiencies afterwards occur, they must be supplied from the bystanders. Ibid. 37. 9. If A be the executor of B, and testamentary guardian of C, the daughter of B, and the testator give a bond as a specific legacy to his daughter. and A receives the bond and charges himself, in his executor's account, with the amount thereof, "to be paid to his ward," and writes to the obligor in the bond, that he shall make himself debtor to his ward for the legacy, and hold the obligor as bound to himself. Held, 1st:That this is an assent of the executor to the legacy, and a payment of it to the guardian, as much as if the characters were united in one 5. "I am not satisfied that a court ought to person. 2d. That the sureties of A, in the ex- inspect the papers which form a part of a wit ecutor's bond (as well as the executor), are dis-ness's testimony, before he is sent to the grand charged from liability for the legacy under the executor's bond. 3d. That A was chargeable, as guardian, but as he gave no bond in that character, his heirs, on his death, are not bound, though the debt remains one of first dignity against his personal estate. Alston v. Munford, 2. No act of congress confers on the United States' courts the right to summon grand juries, or describes their powers. The laws of congress have invested the courts of the United States with criminal jurisdiction; and, since this jurisdiction can only be exercised through the instrumentality of grand juries, the power to direct them results by necessary implication. Hence, the powers of grand juries are co-extensive with, and are limited by the criminal jurisdiction of the courts to which they are an appendage. Hence, too, a presentment by a grand jury in the circuit court of the United States of an offence of which that court has no jurisdiction, is coram non judice; and is no legal foundation for any prosecution, which can only be instituted on the presentment or indictment of a grand jury, to be carried on in another court, unless that court has no right to direct grand juries. But the district courts of the United States have that power as completely as the circuit courts, to the extent of their criminal jurisdiction. jury. This would render it necessary to examine the witness in open court." Per Mr. Chief Justice Marshall. 1 Burr's Trial, 202. 6. The grand jury are not to inspect any papers but such as formed a part of the narrative of the witness examined by them, and proved to be the papers of the person against whom an indictment was exhibited. Such papers, although not the papers of the accused, which tend to justify the witness, may be examined; but they must not bear on the accused. Ibid. 7. The marshal has no power to dispense with the attendance of a grand juror after he has been summoned as one of the panel. The general principle is, that when a person is put on the panel, he stands upon it, and cannot be displaced by the marshal. Per Mr. Chief Justice Marshall. Ibid. 87. 8. If any one on the panel of the grand jury has made up his mind on the case, he had better withdraw. Ibid. 41. 9. The circuit court established the following questions, as proper to be put to the jurors. First, Have you made up your mind on the case, or on the guilt or innocence of the defendant, from the statement you have seen in the newspapers or otherwise? Have you formed or expressed, or delivered an opinion of the guilt or innocence of the accused? Ibid. 48. 10. Witnesses for the defendant, are never sent to the grand jury, but by the consent of the prosecution. United States v. White, 2 Wash. C. C. R. 29. GRANT. 1. A legislative grant and confirmation vests an indefeasible and irrevocable title; it is not revocable in its own nature, or held only durante bene placito. Terret et al. v. Taylor et al., 9 Cranch, 43; 3 Cond. Rep. 254. 2. 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 certair conditions mentioned in the charter. The de Grant. fendants, who were one of the grantees, were a | comes single. We are not prepared to say, that society in England, incorporated by a charter the condition of settling two hundred American from the king. A scire facias was issued on be- families in an American territory has been, or is half 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. 3. 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. 4. 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 as signed, as there was no averment that it had been lawfully demanded. Ibid. 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 the grant, had Florida remained a Spanish province. But to exact its performance after its cession to the United States, would be demanding the 'summum jus' indeed; and enforcing a forfeiture 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, conditions, laws, religion, and all the social and political relations of society." Ibid. 9. If an equitable title be merged in a grant, the party has no relief in equity, although the grant be void as being contrary to law. Preston v. Tremble, 7 Cranch, 354; 2 Čond. Rep. 528. 10. The grants of land, in the possession of the Indians, by the governor of Florida, under the crown of Spain, were good to pass the right of the crown. The grants severed them from the royal domain, so that they became private 5. After the first ten years, a rent of one shil-property, which was not ceded to the United ling for every hundred acres, was to be paid an- States by the treaty with Spain. United States nually to the grantor, in his council chamber in v. Fernandez, 10 Peters, 303. 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. 6. The validity of a legislative grant, does not depend on its containing the technical terms usual in a conveyance. Rutherford v. Greene's Heirs, 2 Wheat. 196; 4 Cond. Rep. 83. 7. 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. United States v. Arredondo et al., 6 Peters, 691. 11. At common law, a grant to a deceased person will pass no estate to his heirs. Dougherty's Heirs v. Edmiston, 1 Cooke, 134. 12. A contract is a compact between two or more persons, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed, and this differs in nothing from grant. Fletcher v. Peck, 6 Craneh, 87; 2 Cond. Rep. 308. 13. Under a fair construction of the constitu tion, grants are comprehended under the term contracts. Ibid. 14. Where a law is in its nature a contract, where absolute rights have vested under that contract, a repeal of the law cannot divest those rights. Ibid. 15. A party to a contract cannot pronounce his own deed invalid, although the party be a sovereign state. A grant is a contract executed. Ibid. 16. A grant of land, by name, in the Potow mas, superadding the courses and distances of the lines thereof, which was reserved, was found to exclude part of the island, passed the whole island. Lodge's Lessee v. Lee, 6 Cranch, 237; 2 Cond. Rep. 358. 8. 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, 17. There are cases in which a grant is abso Mr. Justice Baldwin said: "It is an acknow-lutely void, as where the state had no title to the ledged rule, that a grant, if made on a condition thing granted, or where the officer had no ausubsequent, and its performance becomes im-thority to issue the grant, &c. In such cases the possible by the act of the grantor, the grant be- validity of the grant is, necessarily, examinable Grant. at law. Polk's Lessee v. Wendall et al., 5 Wheat. | sider the issuing of a grant, as conclusive evi293; 4 Cond. Rep. 650. 18. A grant raises a presumption that every prerequisite to its issuing was complied with; and a warrant is evidence of the existence of an entry. But where the entry has never in fact been made, and the warrant is forged, no right accrued under the act of North Carolina of 1777, and the grant is void. Ibid. 19. It is essential to the validity of a grant, that the thing granted should be so described as to be capable of being distinguished from other things of the same kind: but it is not necessary that the grant itself could contain such a description, as, without the aid of extraneous testimony, to ascertain precisely what is conveyed. Natural objects called for in a grunt, must be proved by testimony consistent with the grant, but not found in it. Blake et al. v. Doherty et al., 5 Wheat. 359; 4 Cond. Rep. 682. 20. "In the nature of things, the supreme court perceives no reason why the grant of the land in controversy, should not be good for land which it might lawfully pass, and void as to that part of the tract for the granting of which the office had not been open. It is every day's practice to make grants for lands which have in part been granted to others. It has never been suggested that the whole grant is void, because a part of the land was not grantable." Patterson's Lessee v. Jenckes, 2 Peters, 235. 21. The principle, that a patent conveying lands lying partly within and partly without the territory retained by the Indians, was void as to so much as lay within it, and valid for the residue, was settled by the court in the case of Danforth v. Wear, 9 Wheaton, 673. This decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at least as strong as those of Georgia. Ibid. 236. 22. No grant of land by the United States can affect pre-existing titles. City of New Orleans v. De Armas et al., 9 Peters, 224. 23. There are cases when grants and securities made contrary to the prohibitions of a statute in part, are, upon the true construction of the intent of the statute, void in toto. But it is very different in cases standing merely on the common law. And, therefore, at the common law, in order to make a grant void, in toto, for fraud or covin, the fraud or covin must infect the whole transaction, or be so mixed up in it as not to be capable of a distinct and separate consideration. Winn v. Patterson, 9 Peters, 664. 24. A grant may be good for part of the granted, and bad as to other parts of the same. Ibid. dence of a right in the power which issued it. On its face it may be conclusive, and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee. New Orleans v. The United States, 10 Peters, 662. 27. The supreme court has uniformly held, that the term "grant," in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession; and that in the term "laws," is included custom and usage, when once settled; though it may be comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the common law code, so justly venerated. Strother v. Lucas, 6 Peters, 763. 28. A grant may be made by a law, as well as a patent pursuant to a law; and a confirmation by a law, is as fully to all intents and purposes a grant, as if it contained in terms a grant de novo. Ibid. 29. Grants of land in Florida, by the governor, made before the cession of the territory, were made valid by the treaty, according to their terms. See Florida Land Titles, ante, page 748. 30. Presumptions of a grant, arising from lapse of time, are applied to corporeal as well as incorporeal hereditaments. These may be rebutted by contrary presumptions, and can never arise where all the circumstances are perfectly consistent with the non-existence of the grant. A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. Ricard v. Williams, 7 Wheat. 59; 5 Cond. Rep. 237. 31. In general the presumption of a grant is limited to periods analogous to the statute of limitations, in cases where the statute does not apply. Where the statute applies, the presumption is not generally resorted to; but if the circumstances of the case are very cogent and require it, a grant may be presumed within a short period of the statute. Ibid. 32. The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the states of the Union after the revolution, were made for lands within the Indian huntinggrounds. North Carolina and Virginia to a great extent paid their officers and soldiers of the revolutionary war by such grants, and extinguishlanded the arrears due the army by similar means. It was one of the great resources which sustained the war, not only by those states, but by other states. The ultimate fee, encumbered with the right of Indian occupancy, was in the crown previous to the revolution, and in the states of the Union afterwards, and subject to grant. This right of occupancy was protected by the political power, and respected by the courts, until extinguished, when the patentee took the unencumbered fee. So the supreme court and the state courts have uniformly held. 26. It would be a dangerous doctrine to con- | Clark v. Smith, 13 Peters, 195. 25. The subject of grants of land within the Indian boundary, which had not by any official act been declared a part of the royal domain, was fully and ably considered in the case of Johnson v. M'Intosh, 8 Wheat. 543; 5 Cond. Rep. 515. Every European government claimed and exercised the right of granting lands, while in the occupation of the Indians. United States v. Fernandez, 10 Peters, 303. GUARANTY. Guaranty. 1. A letter from the defendants to J. M., saying they would be his security for one hundred and thirty barrels of corn, payable in twelve months, will maintain an action of assumpsit against the defendants upon the faith of the letter, in favour of any one who has given credit to J. M. for the corn. Lawrason v. Mason, 3 Cranch, 492; 1 Cond. Rep. 605. 2. A letter of credit, addressed by mistake to John and Joseph, and delivered to John and Jeremiah, will not support an action by John and Jeremiah for goods furnished by them to the bearer, upon the faith of the letter of credit. It is not a written contract between the plaintiffs and defendants, and parol proof cannot be admitted to make it such. It is not a case of fraud, ambiguity or mistake, on the part of the plaintiffs. Grant v. Naylor, 4 Cranch, 224; 2 Cond. Rep. 95. P., was ordered to New Orleans for freight, and requesting L. to procure a freight for her, and purchase and put on board of her five hundred bales of cotton, on the owner's account, "for the payment of shipments on owner's account, the bills of T. on me, at sixty days, will meet due honour." On the 13th of February next, the same request was repeated in another letter, and enclosing a letter from T. to L., giving L. instruc tions; and T. continued to correspond with L., adding, "thy bills on me for T.'s account will meet due honour." On the 24th of July, 1806, B. wrote again to L. on the same subject, adding "the owners wish her loaded on their own ac count, for the payment of which thy bills on me will meet due honour at sixty days' sight.” L. proceeded to purchase and ship cotton, and drew bilis on T., which were paid. He afterwards drew two bills on T., in New York, which were protested for non-payment, he having in the mean time failed; and about two years afterwards drew bills on B. for the balance due, including the two protested bills, damages and interest. Held, that the letters of February 13th trans-and July 24th contained no revocation of the letter in the undertaking of January 9th; that although the bills on T. were not drawn according to B.'s assumption, this could only affect the right of L. to recover the damages paid by him on the return of the bills, but that L. had still a right to recover on the original guaranty. Held, also, that L., by making his election to draw on T. in the first instance, did not thereby preclude himself from resorting to B., whose undertaking 3. The construction of a letter of credit or guaranty, must be the same in a court of equity as in a court of law; and any facts which might be introduced in one court to explain the action, may be introduced into the other. Russell v. Clark's Ex'rs et al., 7 Cranch, 69; 2 Cond. Rep. 417. 4. To charge one person with the debt of another, the undertaking must be clear and explicit. Ibid. 5. It is the duty of him who gives credit to another upon the responsibility or general undertaking of a third person, immediately to give notice to the latter of the extent of his engage-was, in effect, a promise to furnish the funds nement. Ibid. 6. A fraudulent representation will subject the person giving it, to the damages sustained by the person trusting to it. Ibid. 7. A misrepresentation of the solidity of a mercantile house, made under a mistake of the fact, without any interest or fraudulent intention, is not a sufficient ground on which an action can be sustained, although the plaintiff may have sustained damage by reason of such misrepresentation. Ibid. 8. A merchant who endorses the bills of another on the faith of the guaranty of a third person, cannot, in case of the insolvency of the principal debtor and of the guarantee, resort to a trust fund created by the principal debtor for the indemnity of the guarantee, for the amount for which the guarantor was liable. Ibid. 9. When the guarantee is insolvent, a court of equity will not decree the money raised for his indemnity to be paid to him, without security being first given that the debt of the principal will be paid. Ibid. 10. In case of a warranty and indemnity, a judgment against the person to be indemnified, if fairly obtained, especially if on notice to the warrantor, it is evidence in the suit against the warrantor, on his contract of indemnity. Clark's Ex'rs v. Carrington, 7 Cranch, 308; 2 Čond. Rep. 507. 11. B., a merchant in New York, wrote to L., a merchant in New Orleans, on the 9th of January, 1806, stating that a ship belonging to T., of | cessary to carry the adventure into execution. Held, also, that L. had a right to recover from B. the commissions, disbursements, and other charges of the transactions. Lanusse v. Barker, 3 Wheat. 101; 4 Cond. Rep. 204. 12. A letter, stating "my son W. mentioned to me, that in consequence of your esteem and friendship for him, you had caused and placed property of yours and your brother's in his hands for sale, and that it is probable from time to time you may have considerable transactions together; on my part I think proper to guaranty to you the conduct of my son, and shall hold myself liable, and do hold myself liable for the faithful discharge of all his engagements to you, both now and in future," will extend to a partnership debt incurred by W. to the two brothers. Drummond v. Prestman, 12 Wheat. 515; 6 Cond. Rep. 620. 13. In such a case, the record of a judgment confessed by the principal, W., to R. D., as surviving partner of R. & C. D., for the amount of the debt due by W. to the partnership firm, was held to be admissible in evidence, inter alia, to charge the guarantor under his letter of guaranty. Ibid. 14. A letter of credit was written by Edmond ston, of Charleston, South Carolina, to a commercial house at Havana, in favour of J. & T. Robson, for fifty thousand dollars, "which sum they may invest through you in the produce of your island." On the arrival of Thomas Robson in Havana, the house to whom the letter of Mr. |