authority to make the particular sale in this case, but endeavored to weaken the force of the admission by adding that he had received special instructions to provide means for the defence of the country by extraordinary efforts and every sacrifice. Instead of claiming that the power to make the grant emanated from the Departmental Assembly, as was claimed in the preceding case, he stated expressly that he did not think the approval of that Assembly was necessary to the validity of the grant. Evidence was also offered by the claimant to show that the original grantees took possession of the property and remained ir possession until it was delivered to the agent of the United States.
II. Commissioners confirmed the claim, and the United States appealed to the District Court, where the decree of the commissioners was affirmed. Whereupon the United States appealed to this court. Propositions discussed in the case are substantially the same as those presented in the case just decided, and for the reasons there suggested it will only be necessary to determine the question of power. When the governor stated in his deposition that he considered the local government clothed with authority from the Supreme Government, he doubtless referred to the despatch of the Minister of War, of the tenth of March, 1846, and also perhaps to the proclamation of the President, which bears date three days later; but the views of the court have been so decidedly expressed upon that subject in the preceding case, that it seems unnecessary to add anything to what was then remarked. Suffice it to say, that we are all of the opinion that the documents will bear no such construction, nor do they afford any substantial support to any such proposition. Taken as a whole, the case is governed by the same principles as the preceding case, and we refer to the reasons there given for our conclusion in this case,-that the governor of the department had no authority to make the grant.
The decree of the District Court is therefore reversed, and the cause remanded with directions to
ACTION. See Fals: Warranty; Municipal Bonds, 1–5.
1. Where an award, made under submission by parties plaintiff and defen-
dant to that effect, awards that one party shall pay to the other a
certain sum or. one day specified, another sum on another day speci-
fied, and that to secure the payments he shall give a bond in a penal
sum, and the party against whom the award is made refuses to do any
of the things awarded, an action of debt will lie against him even
although the time when both sums of money were awarded to be paid
has not yet arrived. The right of action is perfect on the party's
refusal to give the bond. Bayne v. Morris, 97.
2. While it is true that in an executory contract of purchase of land, the
possession is originally rightful, and it may be that until the party in
possession is called upon to restore possession, he cannot be ejected
without demand for the property or notice to quit; it is also true that
by a failure to comply with the terms of sale, the vendee's possession
becomes tortious, and a right of immediate action arises to the vendor.
Gregg v. Von Phul, 274.
8. A non-compliance, by a person who has purchased real estate and gone
into possession, with a request to pay the purchase-money, on the
ground that he is not prepared to do so, and a return to the vendor,
without promise to pay at a future time, and without further remark
of any sort, of a deed offered, is a failure to comply with the terms
of purchase. And ejectment lies at once, without demand or notice,
even though the vendor may not himself have been perfectly exact in
the discharge of parts, merely formal, of his duty,—such want of for-
mality on his part having been waived by the vendee,-and, though
the vendee may have made valuable improvements on the land. Ib.
II. DEFENCES TO.
4. In an action for the price of goods which the purchaser by his own agents
examined and selected, and which he himself afterwards received and
kept without objection, it is no defence that the price, as agreed on,
was above that of the market; there having been neither fraud, mis-
representation, nor warranty in the case. Miller v. Tiffany, 298.
5. A discharge obtained under the insolvent law of one State is not bar
to an action on a note given in and payable in the same State; the
party to whom the note was given having been and being of a different
State, and not having proved his debt against the defendant's estate
in insolvency, nor in any manner been a party to those proceedings.
Baldwin v. Hale, 223.
6 The fact that a debt for which suit is brought arose from the receipt
of the bills of a bank that was chartered illegally and for fraudulent
purposes, and that the bills were void in law, and finally proved
worthless in fact, is no defence to the suit; the bills themselves having
been actually current at the time the defendants received them, and
they not having proved worthless in his hands, nor he being bound
to take them back from persons to whom he had paid them away.
Orchard v. Hughes, 78.
7. Where some parts of a contract are illegal while others are legal, the
legal may be separated from the illegal, if there be no imputation of
malum in se; and if the good part show a sufficient cause of action, it
is error to sustain demurrer to the whole. Gelpcke v. City of Du
buque, 221.
8. A contract made by a city to pay a sum of money with interest to a
person who has assumed the payment of interest on some of the city's
debt, as well interest to become due as interest already due,—is not a
"borrowing of money," but is a contract for the payment of a debt;
and, as the last, will be sustained, when, if the former, it might fall
within certain prohibitions against the city's borrowing money. Ib.
ADMIRALTY. See Intendment.
1. Parties excepting to a report of a commissioner in admiralty proceed-
ings, should state, with reasonable precision, the grounds of their
exceptions, with the mention of such other particulars as will enable
the court to ascertain, without unreasonable examination of the re-
cord, what the basis of the exception is: Ex. gr. If the exception be
that the commissioner received "improper and immaterial evidence,"
the exception should show what the evidence was. If, that "he had
no evidence to justify his report," it should set forth what evidence
he did have. If, that "he admitted the evidence of witnesses who
were not competent," it should give their names, and specify why
they were incompetent, what they swore to, and why their evidence
ought to have been rejected. Commander-in-chief, 43.
2. This same necessity for specification it is declared-though the case was
not decided on that ground, the point not having been raised on ar-
gument-exists in a high degree in regard to an answer put in to an
admiralty claim, which answer ought to be full, explicit, and distinct;
and hence a defence to a libel for collision, which sets forth that the
injured vessel "lay in an improper manner, and in an improper
place," without showing in any respect wherein the manner, or why
the place was improper, is insufficient, it seems, as being too indefi-
nite. Ib.
8. Objections to want of proper parties being matter which should be
taken in the court below, a party cannot, in an admiralty proceeding
by the owners of vessel, to recover damages for a cargo lost ou their
ship by collision, object in the Supreme Court, for the first time that
the owners of the vessel were not the owners of the cargo, and there-
fore that they cannot sustain the libel. Independently of this, as ves-
sels engaged in transporting merchandise from port to port are “car-
riers"-if not exactly "common carriers”—and as carriers are liable
for its proper custody, transport and delivery, so that nothing but the
excepted perils of the sea, the act of God, or public enemies, can dis-
charge them-it would seem that they might sustain the action within
the principle of the Propeller Commerce (1 Black, 582). Ib.
Authority without restriction to an agent to sell, carries with it authority
to warrant. Schuchardt v. Allens, 359.
AGREED STATEMENT. See Case Stated.
ALIENAGE. See Rhode Island.
Under the Tariff Act of 1846, as amended by the Tariff Act of 1857, al-
monds are subject to a duty of 30 p. c. ad valorem. Homer v. The
Collector, 486.
When a bond is given for appeal from the Circuit Courts of the United
States to the Supreme Court, in a bill of foreclosure of mortgage, the
condition of the bond being simply that the appellant shall pay costs
and damages, it does not operate to stay a sale of mortgaged premises
already decreed. Orchard v. Hughes, 73.
The power of arbitrators is exhausted when they have once finally deter-
mined matters before them. Any second award is void. Bayne v.
Morris, 97.
'n appeal to the Supreme Court of a case originating below under the
statute of June 14, 1860, relating to surveys of Mexican grants in
California, and in which the appellants appear on the record as The
United States, simply (no intervenors being named) remains within
the control of the Attorney-General; and a dismissal of the case under
the 29th rule of the court is not subject to be vacated on the applica-
tion of parties whose names do not actually appear in the record as
aving an interest in the case, even although it is obvious that below
there were some private owners contesting the case under cover of
the government name, and that some such were represented by the
same counsel who now profess to represent them here. United States
v. Estudillo, 710.
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