2. The declaration alleged an
authority to draw, but not in
writing, for 100,000 francs;
the proof was a letter authori-
zing blank francs to be drawn
for: Held, that this was no
variance.
ib.
3. The owner of the sugars be-
coming insolvent, wrote the
plaintiffs, informing them, that
the vessel which he had in-
tended should take the sugars
would not do so, and that they
were at liberty to make any
arrangements with the defend-
ant for the interest of all con-
cerned: Held, that this was an
authority under which the
plaintiffs could nominate a ves-
sel, and that the defendant was
bound to ship the sugars in
such vessel, if he did not
choose to appoint another. ib.
4. The sugars were to be ship-
ped at New-York to Mar-
seilles Held, that the mea-
sure of damages, as against the
defendant, was the value of the
sugars in New-York at the
time of his refusal to ship
them according to his con-
tract.

:

ib.

COVENANT.

1. Covenant will not lie upon

words in an instrument insert-
ed by way of condition or de-
feasance by the performance
of some collateral act. United
States v. Brown,
422

2. So upon a penal bond condi-
tioned that one should account
for public monies, property,
&c.: Held, that covenant
would not lie upon the coudi-
tion.

ib.
3. But covenant will lie upon
the bond itself; but the breach
assigned must be the non-pay-
ment of the penalty.
ib.
Where covenant was brought
upon the bond itself, and the
breach assigned was the non-
performance of the condition,
it was held bad on demurrer.

4.

ib.

Vide CONDITION. DAMAGES.

CRIMES.

Vide TREASON.

DAMAGES.

1. Where a bond with a penalty
is given for the performance of
covenants, although damages
may have been sustained to a
greater amount, yet the reco-
very must be limited to the
penalty, especially in a case
of sureties. Contrariety of
English authorities on this
point. Bank of U. S. v. Ma-
gill,
661
2. It seems, that this is not the
rule where bonds are condi-

149

actual cost of the raw material,
and the price or value of the
labour employed in its manu-
facture, adding the expense of
transportation to the sea-port,
whence it was shipped. This
is the cost at the place of ex-
portation, within the meaning
of the law. 95 Bales of Paper
v. United States,
2. An act laying duties on goods
imported, "from and after the
passage of the act," takes ef-
fect the beginning of the day
on which it is passed, and not
from the time of its being
signed by the President. ib.
3. But, in case of a prosecution
for a forfeiture ? Quere. Unit-
ed States v. Williams,

261

Vide ACTION, 1. FORFEITURES,
10, 11. 14, 15. 17, 18, 19.
24-40.

EJECTMENT.

1. The alienage of the plaintiffs
in ejectment cannot be set up
to defeat a recovery where
their ancestor held the lands
at the time of the treaty of
1794. The circumstance of
the special verdict's not find-
ing the fact that he held them
at that time not noticed. Denn.
ex. dem. Fisher v. Harnden, 55
2. In ejectment, possession ac-
companied with a claim of
ownership in fee, is prima fa-
cie evidence of such an estate.
In such case it is not the pos-
session alone, but that it is ac-
companied with the claim of
the fee which gives this effect,
by construction of law, to the
acts of the party.

ib.

457

Jackson v. Porter.
3. But such effect is limited to

the claim actually made, and a
claim of a different kind can-
not afterwards be set up for
the purpose of aiding the first.

ib.
4. As where one claimed title by
an Indian deed, confirmed by
an agent of the British go-
vernment, who could not law-
fully have confirmed it; it was
held, that no other kind of con-
firmation, and no other deed
could be set up to help the
possession; and that any pre-
sumption of the existence of a
deed was to be confined to
such an one as was originally
asserted.
ib.'
5. Whether a deed is to be pre-
sumed from a long possession,
is a mixed question of law and
fact, and in most, if not all
cases, to be submitted to the
jury, under the advice of the
Court. The existence of the
deed is a fact for the jury, but
its legal effect and operation a
question of law for the Court.
ib.

6. The seisin of lands belonging
to the Indian tribes is in the
sovereign, and the Indians are
mere occupants. A purchaser
from them can acquire only
the Indian title, and they may
resume it, and make a differ-
ent disposition of it. ib.
7. Where proclamation had been
made by the governor of the
colony of New-York, under
orders from the king, that no
purchases of land should be
made of the Indians, it was
held, that a purchaser could

not acquire even the Indian
title of occupancy.
ib.
8. An occupant under an Indian
grant, the Indians having after-
wards resumed the title, and
granted it to the crown, was
held to be a tenant at will of
the king, whose occupancy no
length of time could ripen into
a title by adverse possession.ib.
9. Where one enters into land

having title, his seisin is not
bounded by his actual posses-
sion, but is co-extensive with
his title. But where he enters
without title, his seisin is con-
fined to his possession by
metes and bounds.
ib.
10. The circumstances that one
took possession of unoccupied
land, as contractor, to trans-
port for the government to and
from a fort on the frontiers,
and that his claim compre-
hended the fort itself, as well
as the land around it, and that
his improvements were neces-
sary in the performance of his
contract, considered evidence
that he did not hold in hostili-
ty, but in subordination to the
rights of the crown. ib.
11. How far a party who gains
possession by force, can, in
an action of ejectment, pro-
tect himself by setting up a ti-
tle to the land? Quere. ib.
12. Under the second article of
the treaty with Great Britain of
1794, the precincts and juris-
diction of a post are not to be
considered as extending three
miles in every direction, by
analogy to the jurisdiction of a
country over that distance of
the sea surrounding its coasts,

but they must be made out by
proof.
ib.
13. This clause in the second
article of the treaty, providing
that settlers within such pre-
cincts shall be protected in
the enjoyment of their pro-
perty, as well as the 9th arti-
cle, were intended to protect
legal and equitable interests in
land, and not trespassers and
intruders without right. ib.
14. Where the quantity of a
tract of land is given as well as
the metes and bounds, the lat-
ter will control the location,
although they contain less than
the given quantity, if they can
be ascertained with certainty.
Jackson v. Sprague. 494
15. And this rule applies in all
cases, whether the lands have
been surveyed or not. ib.
16. As where land was granted
to be run upon a given base,
which had never been sur-
veyed, but could be ascer-
tained from a known point,
and parallel lines were to be
run from each extremity of
the base, until a certain quan-
tity was obtained, but a portion
of the base had been cut off by
a prior grant so as to narrow
the extent between the paral-
lel lines; it was held, that the
lines could not be continued,
in order to make up the defi-
ciency out of the lands of the
grantor, beyond the limits
which they would have reach-
ed, to make up the quantity,
if the base had remained un-
diminished.
ib.
17. Where the different parts of
a description of the metes and

2.

EVIDENCE.

1. If it appear on the face of a
deposition taken under the act
of Congress, that the officer
taking the same was authoriz-
ed by the act, it is sufficient in
the first instance, without any
proof that he was such officer.
Ruggles v. Bucknor. 358
Objections to the competency
of the witness should be made
at the time of taking a deposi-
tion under the 30th section of
the judiciary act, if the party
attend, and the objections are
known to him, in order that
they may be removed. Other-
wise, he will be presumed to
have intended to waive them.
U. S. v. One Case Hair Pencils.