3d of March, 1795, c. 289. by
notification from the Treasury
Department, requiring him to
render to the Auditor of the Trea-
sury his accounts and vouchers
for settlement. Walton v. Uni-
ted States,
351
12. Quære, Whether the act of the 3d
of March, 1795, c. 289. is not
virtually repealed by the act of
the 3d of March, 1797, c. 368 ?
13. The statute of 11 and 12 Wm.

III. c. 6. which is in force in Ma-
ryland, removes the common law
disability of claiming title through
an alien ancestor, but does not
apply to a living allen ancestor,
so as to create a title by heirship,
where none would exist by the
common law, if the ancestor were
a natural born subject or citizen.
M'Creery v. Somerville, 354
14. Thus, where A. died seised of
lands in Maryland, leaving no
heirs, except B., a brother, who
was an alien, and had never been
naturalized as a citizen of the Uni-
ted States, and three nieces, the
daughters of the said B., who
were native citizens of the
United States: it was held, that
they could not claim title by inhe-
ritance, through B., their father,
he being an alien, and still living.
Id.

See LOCAL Law.

CONTRACT.

354

D.

DEED.

1. Although the Church-Wardens of
a parish are not capable of holding
lands, and a deed to them and
their successors in office, for ever,
cannot operate by way of grant;
yet, where it contains a covenant
of general warranty, binding the
grantors and their heirs for ever,
it may operate by way of estop-
pel, to confirm to the church and
its privies the perpetual and bene-
ficial estate in the land. Mason
v. Muncaster,
445. 455

DEVISE.

1. R. B. being seised of lands in Ma-
ryland, made three instruments
of writing, each purporting to be
his will. The first, dated in 1789,
gave his whole estate to his ne-
phew, J. T. M., after certain pe-
cuniary legacies to his other ne-
phews and nieces. In the second
will, dated in 1800, the testator
gave his whole real estate to J. T.
M., during his life; and after his
death, to his eldest son, A., in
tail, on condition of his changing
his name to A. Barnes, with re-
mainder to the heirs of his ne-
phew, J. T. M., lawfully begotten,
for ever, on their changing their
surnames to Barnes. The third
will, which was executed after the
others, and probably in 1803, af-
ter some small bequests, proceed-
ed thus: "I give the whole of my
property, after complying with
that I have mentioned, to the male
heirs of my nephew, J. T. M.,
lawfully begotten, for ever, agree-
ably to the law of England, which

was the law of our State before the
revolution, that is, the oldest male
heir to take all, on the following
terms: that the nume of the one
that may have the right, at the
age of twenty-one, with his con-
sent, be changed to A. Barnes, by
an act of public authority of the
State, without any name added,
together with his taking an oatlı,
before he has possession, before a
magistrate of St. Mary's county,
and have it recorded in the office
of the Clerk of the county, that he
will not make any change, during
his life, in this my will, relative to
my
real property. And on his re-
fusing to comply with the above
mentioned terms, to the next male
heir, on the above mentioned
terms; and so on, to all the male
neirs of my nephew, J. T. M., as
may be, on the same terms; and
all of them refusing to comply, in
a reasonable time after they have
arrived at the age of twenty-one,
say, not exceeding twelve months,
if in that time it can be done, so
that no act of intention to defeat
my wili shall be allowed of; and
on their refusing to comply with
the terms above mentioned, if any
such person may be, then to the
son of my late nephew, J. T. M.,
named A. T. M., on the above
mentioned terms; and on his .c-
fusal, to his brother, J. T. M.;
and on his refusing to comply with

then appoints J. T. M. his sole
executor, with a salary of 1600
dollars per annum, for his life,
and adds," and my will is, that
he shall keep the whole of my
property in his possession, du-
ring his life.” He then empow-
ers his executor to manage the
estate at his discretion, to employ
agents, and to pay them such sa-
laries as he shall think proper; to
repair the houses, and build
others, as he may think necessa-
ry; to reside his plantations,
and to use their produce for his
support; and adds, " after which
to be the property of the person
that may have a right to it, as
above mentioned.” Held, that
the conditions annexed to the
estate, devised to the oldest male
heir of J. T. M., were subsequent
and not precedent, and that, con-
sequently, the contingency on
which the devise was to take ef
fect, was not too remote, the estate
vesting on the death of J. T. M.;
to be devested, on the non-per-
formance of the condition. Tay-
lor v. Mason,

825

2. Quære, Whether J. T. M. took
an estate tail? Id.
853
3. Quare, Whether the last will re-
voked those which preceded it?
Id.

DUTIES.

heirs male of my nephew, A. B.
T. M., lawfully begotten, on the
above mentioned terms; and on
their refusal, to the male heirs of
my niece, Mrs. C., lawfully be-
gotten, on their complying with
the above mentioned terms; and
on their refusal, to the daughter of
my nephew, J. T. M., named
Mary, so on to any daughter he
may have or has."
The testator

E.

EVIDENCE.

353

Columbia,

2. Secondary evidence of the con-
tents of written instruments is ad-
missible, wherever'it appears that
the original is destroyed, or lost,
by accident, without any fault of
the party. Renner v. Bank of
581.596
3. In the case of a lost note, it is not
necessary that its contents should
be proved by a notarial copy.
All that is required is, that it
should be the best evidence the
party has it in his power to pro-
duce. Id.
597
4. The English practice of requiring
a special count in the declaration,
as upon a lost note, in order to
let in secondary evidence of its
contents, has not been adopted in
the United States. Id.
5. If a party intend to use a written
instrument in evidence, he must
produce the original, if in his pos-
session. But if it is in the pos-
session of the other party, who re-
fuses to produce it, after notice, or
if the original is lost or destroyed,
secondary evidence (being the
best which the nature of the case.
allows) will be admitted. Riggs
v. Tayloe,
6. The party, in such case, may read
a counterpart; or, if there is no
counterpart, an examined copy;
or, if no such copy, may give pa-
rol evidence of the contents.

597

483

Id.

486

7: Where a writing has been volun-
tarily destroycd, for fraudulent
purposes, or to create an excuse
for its non-production, secondary
evidence of its contents is not ad-
missible. But where the destruc-
tion or loss (although voluntary)
happens through mistake or acci
dent, such evidence will be ad-
mitted. Id.
486
8. In an action against the receiver,
not describing him in his official
capacity, evidence may be given

1. A covenant, under seal, to come
to a settlement within a limited
time, and to pay the balance which
might be found due, is merely col-
lateral, and cannot be pleaded as
an extinguishment of a simple
contract debt, the period within
which the settlement was to be
made, having elapsed before the
commencement of the suit, and
the plea not averring that any
such settlement had been made.
Baits v. Peters,
556
2. The official bond given by a re-

ceiver of public moneys, does not
extinguish the simple contract
debt arising from a balance of ac-
count due from him to the United
States. An action of assumpsit
for the balance of account, and an
action of debt upon the bond
against the principal and sureties,
may be maintained at the same
time. Walton v. United States,
631

J.

JURISDICTION.

1. The District Court of the district
where the seizure was made, and
not where the offence was com-
mitted, has jurisdiction of pro-
ceedings in rem, for an alleged
forfeiture. The Merino et al.

391.402

2. If the seizure is made on the high
seas, or within the territory of a
foreign power, the jurisdiction is
conferred on the Court of the dis-
trict where the property is carri-
ed and proceeded against. Id.

402

3. A municipal seizure, within the
territory of a foreign power, does
not oust the jurisdiction of the Dis-
trict Court, into whose district
the property is brought for adju-
dication. Id.
402, 403
4. Where Courts of equity have con-
current jurisdiction with Courts
of law, as in matters of fraud, if
the cause has already been tried
and determined by a Court of
law, a Court of equity cannot
take cognizance of it, unless there
be the addition of some equitable
circumstance to give jurisdiction.
The Court, which first has pos-
session of the subject, must deter-
mine it conclusively. Smith v.
McIver,
532, 534
5. I. such a case, some defect of tes-
timony, or other disability, which
a Court of law cannot remove,
must be shown, as a ground for
resorting to a Court of equity.
Id.
534
6. An endorsee of a promissory note,
who resides in a different State,
may sue, in the Circuit Court, his
immediate endorser, residing in
the State in which the suit is
brought, although that endorser
be a resident of the same, State
with the maker of the note. Mol-
lan v. Torrance,
537
7. But where the suit is brought
against a remote endorser, and
the plaintiff, in his declaration,
traces his title through an inter-
mediate endorser, he must show
that this intermediate endorser
could have sustained his action in
the Circuit Court. Id. 537
8. A plea to the jurisdiction of the
Circuit Court, must show that

10.

11.

the parties were citizens of the
same State, at the time the action
was brought, and not merely at
the time of the plea pleaded. The
jurisdiction depends upon the
state of things at the time of the
action brought; and after it is
once vested, it cannot be ousted
by a subsequent change of resi-
dence of either of the parties. Id.
539
9. Quære, As to the authority of
this Court to interfere, by man-
damus, in the case of the removal
or suspension of an Attorney of
the District and Circuit Courts.
Ex parte Burr,
529
Whatever may be the authority of
this Court in that respect, it will
not be exercised, unless where the
conduct of the Court below has
been grossly irregular and unjust.
Id.
530
In a regular complaint against an
attorney, charges cannot be re-
ceived and acted on, unless made
on oath. But he may himself
waive the preliminary of an affi-
davit, and the Court may pro-
ceed, at his instance, to investi-
gate the charges upon testimony,
which must be on oath, and regu-
larly taken. Id.
530
In replevin, if it be of goods dis-
trained for rent, the amount for
which avowry is made, is the va-
lue of the matter in controversy;
and if the writ be issued to try the
title to property, it is in the na-
ture of detinue, and the value of
the article replevied is the value
of the matter in controversy, so as
to give jurisdiction to this Court
upon a writ of error. Peyton r.
Robertson,
527
The act incorporating the Bank of
the United States, gives the Cir-
cuit Courts of the United States
jurisdiction of suits by and against
the Bank, and this provision is
warranted by the constitution.

12.

13.

Osborn v. Bank of the United

States,
738
14. The Circuit Courts of the United
States have jurisdiction of a bill
brought by the Bank of the Uni-
ted States, for the purpose of pro-
tecting the Bank in the exercise of
its franchise, which are threaten-
ed to be invaded under the uncon-
stitutional laws of a State, and the
suit may be maintained against
the officers and agents of the State,
who are entrusted with the exe-
cution of such laws. Id.

L.

LEX LOCI.

1. The disposition of real property,
by deed or will, is subject to the
laws of the country where it is si-
tuated. Kerr v. Moon, 565
2. Where the devisor was entitled to

warrants for land in the Virginia
Military District in the State of
Ohio, under the laws and ordinan-
ces of Virginia, on account of his
military services, and made a will
in Kentucky, devising the lands,
which was duly proved and re-
gistered, according to the laws of
the State: Held, that although
the title to the land was merely
equitable, and that not to auy
specific tract of land, it could not
pass, unless by a will proved and
registered according to the laws
of Ohio.
Id.
565
3. Even admitting it to have been

personal property, a person claim-
ing under a will proved in one
State, cannot intermeddle with,
or sue for, the effects of a testator
in another State, unless the will
be proved in the latter State, or it
is permitted by some law of that
State.
4. Letters testamentary give to an
executor no authority to sue for

Id.

571

1. Where a mortgagor comes to re-
deem, the Court of equity has,
by analogy to the statute of limi
tations, fixed upon 20 years as
the period, after forfeiture, and
possession taken by the mortgagee,
no interest having been paid in
the mean time, and no circum-
stances appearing to account for
the neglect, beyond which a right
of redemption shall not be favour-
ed. Hughes v. Edwards,

489.497
2. Where the mortgagee brings his
bill of foreclosure, the mortgage
will, after the same length of
time, be presumed to have been
discharged, unless circumstances
can be shown to repel the pre-
sumption, as payment of interest,
a promise to pay, an acknowledg-
ment by the mortgagor that the
mortgage is still subsisting, and
the like. Id.
497, 498
3. A bona fidei purchaser under the
mortgagor, with actual notice of
the mortgage, or constructive no,
tice by means of a registry, can
only protect himself in equity by
the lapse of time, under the same
circumstances which would afford
a protection to the mortgagor. Id:

99