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1816.

been perfectly consistent with the survey returned in favour of another person. The deed itself, then, furnishes no evidence of intention, and the answer Trustees of does not admit it.

Russel

V.

Transylva

nia Univer

sity.

But it is contended that the decd, taken in connexion with one of the certified facts," that but one of Lord Dunmore's warrants ever issued to M'Kee; that but one survey of 2,000 acres was evèr returned in his name under that warrant; and that this was the only survey of 2.000 acres to be found in the office, in M'Kee's name, under any warrant," shows that he must have intended to convey that surveyed for him, and no other. But the majority of the court think otherwise. Had the deed described the land conveyed, as a tract of 2,000 acres surveyed for McKee himself, there might have been some ground for this argument. But the deed is not so expressed; and, for aught we know, M'Kee may have been proprietor of many grants surveyed under Dunmore's warrants, in the name of others, and conveyed to him. Such an intention ought not to be inferred from slight circumstances, nor precipitately acted upon. Where A. conveys to B., by metes and bounds, the circumstances ought to be very strong to prove that he meant to convey any other lands than those specifically described, before this court would be induced to set aside one deed, and decree the execution of another. If the vendee may set upsuch a ground of equity, the vendor may do the same; and the intrinsic difficulties which such investigations wild present, would make it generally better to leave the parties to their remedy at law.

1816.

Russel

Transylva

sity.

If a person, supposing himself possessed of a specific tract of land in a certain neighbourhood, should contract for the sale of that land to another, it V. does by no means follow that he would have sold Trustees of him any other tract, in the same vicinity, to which, nia Univer without his knowledge, he was then entitled, much less that he would have sold it for the same price. It is a consideration of no little importance in this case that the bill expressly alleges McKee's ignorance of the actual return of the surveyor. And on what ground are we to presume that if he had known it he would have sold the tract which it covered at all, or sold it at the price expressed in the deed to Ross? Its value might have been treble that of the other, and there is reason to think that this court would have been induced, under very strong circumstances only, to decree in favour of those complainants against M'Kee himself. The sale of a warrant or of any survey that may be made under a warrant, would be in the nature of a wager or speculation, and might be sustained. But where an individual, supposing his warrant located on black acre, when it is, in fact, located on white acre, conveys the former by metes and bounds, it must be a strong case that will sanction a court in setting aside the conveyance of the one, and decreeing that of the other. It is in vain to say, in this case, that the defendants are bound to show that M'Kee ever had, in fact, an interest in any survey of 2,000 acres beside the one in litigation. The answer puts the complainants on their proof, and it is from them that the evidence is to proceed upon which our decision is to be

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1816.

Russel

V.

founded. Besides, how are the defendants to be conusant of a fact like this? Their privity forces upon them no knowledge but what has relation to Transylva- this single tract of land; and even as to that, coming sity. in as they do under an act of confiscation, there can

Trustees of

nia Univer

be no reason for requiring of them evidence to such a fact. A necessary unavoidable implication or inference from the evidence adduced by the complainants is the only possible ground upon which such a necessity could be contended for, and even this, in our opinion, does not exist.

In this case the court explicitly avows that it has been not a little disposed to look unfavourable on a claim of such great antiquity. Nearly forty years have elapsed since M'Kee conveyed this land to Ross. Almost every party and every witness must now be no more; and to undertake, at this late day, to inquire into the intentions of parties in a transaction so very remote in time, might be attended with difficulties and evils which cannot now be foreseen.

Decree affirmed.

1816.

The Elsincur.

(PRIZE.)

The Elsineur.-JONES, Claimant.

Where an inspection and comparison of original documents is material to the decision of a prize cause, this court will order the original papers to be sent up from the court below.

APPEAL from the circuit court for the district of Georgia.

In this case, which was principally a question of fact, Pinkney and Charleton, for the claimant, stated, that the condemnation in the court below was partly grounded on a comparison of certain documents in this case, with a paper invoked from the Stackelburg, another prize cause brought from the same court; that comparison of hands can never be evidence in a court that has not the two writings before it; and that the original papers might be brought up from the court below, in the same manner as the record is removed upon a writ of error in England.

The following order was made by the court:

In this case it is ordered, that the claimant make March 21st farther proof respecting the letter dated at St. Barts, September 1st, 1813, and signed Jasper D. Blagge, which is now offered to the court; that he show where he received it, and why it has been so long suppressed. It is farther ordered, that the clerk of the circuit court for the district of Georgia, do, under

1816.

The Hiram.

the direction of the judges of that court, transmit, by some safe conveyance, to this court, the original papers following, to wit, the Swedish registers of the Elsineur, of the Allemon, and the Stackelburg; the burgher's brief to Peter Hofstrom and to Runnels, and the bill of sale to Blagge. The claimant is also required to state the persons to whom the vessel and cargo were consigned at Bath, in the voyages to that place, together with a detailed account of those voyages.

(PRIZE.)

The Hiram.-CORNTHWAIT ET AL. Claimants.

An agreement in a court of common law, chancery, or prize made under a clear mistake, will be set aside.

Navigating under a license from the enemy is cause of confiscation, and is closely connected in principle with the offence of trading with the enemy; in both cases, the knowledge of the agent will affect the principal, although he may, in reality, be ignorant of the fact.

APPEAL from the circuit court for the district of Massachusetts. This was a vessel laden with flour, and bound from Baltimore to Lisbon, captured, and finally condemned by this court at February term, 1814, for sailing under a license from the enemy. The present case was that of the claimants of a greater part of the cargo. The ship was owned,

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