1. If the defendant does not give up mortgaged property to the mortgagee pursuant to
a decree to that effect, its value at the time of the failure to obey the decree, is the
measure of damages. Fowler v. Merrill, 11 H. 375....655.
2. The price paid for a license to use the thing patented, may properly be considered
by the jury in estimating the damages for an infringement, but does not afford an
absolute rule of damages. Hogy v. Emerson, 11 H. 587....724.
3. Under the statute of Alabama respecting the negotiation of single bills, &c, the ob-
ligor may show, as against the assignee suing in his own name, that the note has been
avoided for fraud of the obligee, or may rely on such fraud and the damage arising
therefrom as a partial or total failure of consideration. Withers v. Greene, 9 H.
4. The modern doctrine, as to partial failure of consideration, and unliquidated dam-
ages suffered by the defendant, being shown by way of defence, examined. Ib.
CONTRACT, 1; Ferry, 3.
DEBTOR AND CREDITOR.
ASSIGNMENT, 2.
1. If one part of an indenture is produced by one party to it, signed by the other
party, the presumption is, that the other part, signed by himself, is in the hands of
the other party. Hallett v. Collins, 10 H. 174....349.
2. In Louisiana, a notarial act concerning immovable property, has no effect on the
rights of third persons, until recorded in the proper office. Mc Coy v. Rhodes, 11 H.
3. If a law requires mortgages to be recorded, and a mortgage had already been re-
corded prior to the passage of the law, this is sufficient. Fowler v. Merrill, 11 H.
ADVERSE POSSESSION; ESTOPpel; Evidence, 4; Joint-Tenants, &c.; LIMITA-
TIONS OF SUITS, 3.
DEMURRER.
PLEADING, 4, 5.
A judge of probate in Mississippi, is "a judge of a county court," within the meaning
of the 30th section of the judiciary act of 1789, (1 Stats. at Large, 88.) Fowler v.
Merrill, 11 H. 375....655.
A bequest "to some disposition thereof which my executors may consider as promising
most to benefit the town and trade of Alexandria, leaving the same entirely to their
disposition of it, in such manner as appears to them promises to yield the greatest
good" is too vague to be executed by a court of chancery, under its ordinary
judicial equity powers; and the 43d of Elizabeth, not having been adopted as part
of the law of Virginia, the bequest there is void, and the property belongs to the heir
at law. Wheeler v. Smith, 9 H. 55....33.
COURTS OF THE UNITED STATES, 19-21. 22. 24. 25.
DIVISION OF OPINION.
COURTS OF THE UNITED STATES, 26.
DUE DILIGENCE.
BILLS OF EXCHANGE, &c. 4. 5.
COURTS OF THE UNITED STATES, 6.
1. In modern practice, courts usually give a summary remedy on motion, where a writ
of audita querela was formerly used; but a bill in equity will also lie. Humphreys ▾.
Leggett, 9 H. 297....151.
2. Therefore, where a defendant had a good defence, which accrued after the case was
sent back to the circuit court from this court, and under the mandate of this court,
was prevented from pleading it, equity relieved him, by enjoining the judgment. Ib.
8. A court of equity will not give a remedy against the personal assets of a deceased
surety, when the remedy at law has been lost by the election of the obligee to take a
joint judgment on a joint and several obligation. United States v. Price, 9 H.
4. The question whether the title of a township to the sixteenth section reserved for
school lands by the acts of March 3, 1803, (2 Stats. at Large, 233,) and April 21,
1806, (2 Stats. at Large, 401,) shall prevail against the title of a Choctaw Indian,
under his actual occupancy, and the relinquishment to him of the ultimate title of the
United States by treaty, is a question of law, and a court of equity should not pass
upon it in a bill for that purpose only. Gaines v. Nicholson, 9 H. 356....174.
5. Under a general prayer for relief a specific performance may be decreed. Tayloe v.
Merchants Fire Insurance Company, 9 H. 390. · · · 191.
6. A court of the United States sitting in a State where the distinction between law
and equity does not exist, may adopt the state proceedings to try suits at law; but
equitable rights must be presented and tried according to the rules prescribed by
this court for the pleadings and practice in equity. Bennett v. Butterworth, 11 H.
7. The rule which protects bonâ fide purchasers does not apply to purchasers of merely
equitable titles. Hallett v. Collins, 10 H. 174....349.
ANSWER; COURTS OF THE UNITED STATES, 13; DEVISE, &c.; INJUNCTION; IN-
SURANCE, 1; PLEADING, 5; PUBLIC LANDS, 4; RELEASE, &c.; TRUST; UNITED
STATES, 1. 3.
ESTATES OF PERSONS DECEASED.
EQUITY, 3; EXECUTION, 1.
The settled construction of the act of New York, for abolishing entails, passed in 1786,
is, that it includes estates tail in remainder and vests in the remainder-man a fee-
simple, subject only to the life-estate of the tenant in possession; and this construc-
tion of the statute, by which a rule of property has been established, is followed by
this court. Van Rensselaer v. Kearney, 11 H. 297....631.
1. If a deed of conveyance, expressly or by necessary implication, affirms that the grantor
has and conveys a fee-simple in the land, his heirs are estopped from denying that
he had that estate, and passed it by the deed to the grantee; and this may appear,
in any part of the deed, or by other writings which are referred to therein. Van
Rensselaer v. Kearney, 11 H. 297....631.
2. The particular terms of a deed examined, and taken in connection with the writings
referred to, held to amount to such an estoppel. Ib.
BILLS OF EXCHANGE, &c. 1; EXECUTION, 2; TRUST, 1.
1. Spanish laws prevailing in Louisiana before its cession, and affecting titles to lands
there, must be judicially noticed by the court. Their existence is not matter of fact
to be tried by a jury. United States v. Turner, 11 H. 663....752.
2. Parol evidence of declarations of the testator, made at the time he was engaged in
making his will, as to his testamentary intentions, is not admissible to show that a
devise to his children was not intended to include his daughters. Weatherhead's
Lessee v. Baskerville, 11 H. 329....647.
3. Nor can the acquiescence of one of the daughters, who was under coverture, be re-
lied on to show that the testator did not include her among his devisees, under the
words "my children." Ib.
4. Where the plaintiff showed by parol that two of the calls in his deed were not ap-
plicable to a lot of which he was in possession, unless another lot, of which the de-
fendant was in possession, was also to be included, the defendant may give other
parol evidence of the acts and declarations of the plaintiff, to show that the lot of the
defendant was not included in the description contained in the plaintiff's deed.
Atkinson's Lessee v. Cummins, 9 H. 479....229.
5. Extraneous evidence that a clause in a written contract, providing for the forfeiture
of a fixed sum if the work should not be completed by a certain day, was intended
to liquidate the damages for such failure, is not admissible. Van Buren v. Digges,
6. Declarations by a patentee who had parted with his interest, under the patent, that
he never completed his invention, are not evidence against one claiming under him.
Wilson v. Simpson, 9 H. 109....58.
7. A treasury transcript, which is a substantial copy of the quarterly returns of a col-
lector of customs, revised and corrected by the accounting officers of the treasury,
is evidence, under the act of March 3, 1797, (1 Stats. at Large, 512;) and it is no
objection that they contain charges which are the aggregates of items rendered by
the collector in his quarterly abstracts, references to those abstracts being made, and
they not having been called for at the trial. Hoyt v. United States, 10 H. 109....
8. A special contract and also a quantum meruit being declared on, it is competent for
the defendant to show that the only contract made was special, that it differed es-
sentially from that declared on, and is still unexecuted; such evidence, if believed,
defeats the action on both counts. Washington, &c. Steam Packet Company v. Sick-
les, 10 H. 419....440.
9. Though a contract provided for a particular mode of testing the amount of fuel saved
by means of an improvement in steam machinery, yet having given evidence of that
test, it was competent to confirm it by similar experiments, and the experience of
others on board other steamboats. Ib.
10. A witness having been impeached by evidence of declarations inconsistent with his
testimony, cannot be corroborated by evidence of other declarations corresponding
with his testimony. Conrad v. Griffey, 11 H. 480....691.
11. A lawful partition by judicial decree among tenants in common, under which the
demandant has received her legal share of her father's lands, cannot be presumed,
as against the demandant, from lapse of time, and acquiescence, and the destruction
of the records of the court having jurisdiction to make such partitions, if the demand-
ant was married while under age, and continued under coverture until a short time
before action brought. Weatherhead's Lessee v. Baskerville, 11 H. 329....647.
ADVERSE POSSESSION; ANSWEr; Damages, 2-4; FRAUDULENT CONVEYANCE;
PUBLIC LANDS, 3. 8.
A judgment will not be opened to enable a plaintiff in error to correct an alleged mis-
take in a bill of exceptions. Gayler v. Wilder, 10 H. 477. .466.
1. In Missouri, in 1836, lands of a deceased debtor could be sold on execution under a
judgment against his executors. Landes v. Brant, 10 H. 348....418.
2. Where an imperfect Spanish title was seized and sold on execution in conformity
with the local law of the Missouri territory, while proceedings were pending before
a board of commissioners, and the perfect title was subsequently granted by patent
to the debtor, pursuant to the decision of the board, it enured to the benefit of the
purchaser of the imperfect title, both by the doctrine of relation, applicable to such
a case, and because, the patentee, being dead at the date of the patent, under the
act of congress of May 20, 1836, (5 Stats. at Large, 31,) the purchaser had a better
title than the devisees of the patentee. Ib.
EXECUTORS AND ADMINISTRATORS.
ACTION, 1; EXECUTION, 1.
1. A factor has not power to transfer the title of his principal to goods consigned to
him for sale, in payment of a precedent debt due from himself; and a creditor who
receives the goods under such an arrangement, as well as his vendee, though acting
in good faith, and in ignorance of the fact that the goods did not belong to the
factor, acquires no title, as against the principal. Warner v. Martin, 11 H. 209....
2. A factor, who leaves the country, cannot delegate to his clerk the power to sell goods
of his principal, no usage of the trade to that effect being shown. Ib.
1. A law granting to a town the right to keep a ferry across a public river, does not
amount to a contract between the State and the town, so as to preclude the legis-
lature from revoking the grant. East Hartford v. Hartford Bridge Company, 10
H. 511....483.
2. The legislature having ordered a ferry, which came in competition with a toll bridge.
to be discontinued, in consideration that the proprietors of the bridge would incur
certain expenses for the public benefit, and on the faith of such discontinuance these
expenses having been incurred, held, in conformity with the decision of the highest
court of the State, that the legislature could not restore the ferry without violating
the constitution of the State. Ib.
8. And the town, continuing to use the ferry, was held liable to the company for the
damages caused by such continuance. East Hartford v. Hartford Bridge Company,
10 H. 541....499.
COURTS OF THE UNITED STATES, 14-18; PUBLIC LANDS, 9–14.
PUBLIC LANDS, 13. 17-26. 30; TREATY, 3.
FRANCHISE.
FERRY; TREATY, 1.
1. A release made by heirs, just come of age, out of possession, ignorant of the value
of the land, and of the nature of their title, obtained by one in possession, well ac-
quainted with the facts, who had designedly obscured the title, and who paid only an
inadequate consideration, was set aside, as constructively fraudulent.
Hallett v.
Collins, 10 H. 174....349.
2. A family compromise of litigated rights upheld by the court, though wanting in some
formalities, and subject to some doubts as to its fairness. Gratz's Executors v.
Cohen, 11 H. 1....529.
DAMAGES, 3; Judgment, &c. 1; PUBLIC LANDS, 3; UNITED STATES, 1.
An instruction to the jury, that "if a mortgage conveyed more property than would
be sufficient to secure the debt, it was fraudulent," is erroneous, this not being even
a badge of fraud. Downs v. Kissam, 10 H. 102....314.
GEORGIA.
PUBLIC LANDS, 15. 16.
FERRY; PUBLIC LANDS, 1. 7-11. 15-19. 22-28. 30; TREATY, 1.
Under the following letter of guarantee: "I hereby guarantee the payment of any
purchases of bagging and rope which Thomas Barrett may have occasion to make
between this and the 1st of December next." Held, 1. That the limitation was of
the time within which purchases were to be made, not of the credit to be allowed to
the purchaser. 2. That immediate notice of the goods furnished need not be given
to the guarantor; all that was required being, notice within a reasonable time after
the dealings under the guarantee were closed. 3. That the effect of a promise by
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