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but no jurisdiction. Some few royal prerogatives, it is FAIRFAX's true, are expressly conveyed, and these unquestionably DEVISEE must have accrued to the state upon the assertion of independence. But the interest in the soil remained to HUNTER'S the grantee. So far, therefore, I feel no difficulty about LESSEE. sustaining the claim of the devisee. But did this interest remain in him at the time of the treaty of 1794?

I am of opinion it did not. The interest acquired under the devise was a mere scintilla juris, and that scintilla was extinguished by the grant of the state vesting this tract in the Plaintiff in error. I will not say what would have been the effect of a more general grant. But this grant emanated under a law expressly relating to the lands of lord Fairfax authorizing them to be entered, surveyed and granted.

The only objection that can be set up to the validity of this grant is, that it was not preceded by an inquest of office. And the question then will be, whether it was not competent for the state to assert its rights over the alien's property, by any other means than an inquest of office. I am of opinion that it was. That the mere executive of the state could not have done it, I will readily admit; but what was there to restrict the supreme legislative power, from dispensing with the inquest of office? In the case of Smith and the state of Maryland, this Court sustained a specific confiscation of lands under a law of the state, where there was neither conviction nor inquest of office. And in Great Britain, in the case of treason, an inquest of office is expressly dispensed with by the statute 33, H. VIII, c. 30. So that there is nothing mystical, nor any thing of indispensable obligation, in this inquest of office. It is, in Great Britain, a salutary restraint upon the exercise of arbitrary power by the crown, and affords the subject a simple and decent mode of contesting the claim of his sovereign; but the legislative power of that country certainly may assert, and has asserted, the right of dispensing with it, and I see no reason why it was not competent for the legislature of the state of Virginia to do the same.

Several collateral questions have arisen, in this case on which, as I do not differ materially from my bre

FAIRFAX's thren, I will, only express my opinion in the briefest

DEVISEE manner.

v.

HUNTER'S I am of opinion that whenever the case, made out in LESSEE. the pleadings, does not, in law, sanction the judgment which has been given upon it, the error sufficiently appears upon the record to bring the case within the XXV section of the judiciary act.

I am also of opinion that whenever a case is brought up to this Court under that section, the title of the parties litigant must necessarily be enquired into, and that such an enquiry must, in the nature of things, precede the consideration how far the law, treaty, and soforth, is applicable to it; otherwise an appeal to this Court would be worse than nugatory.

And that in ejectment at least, if not in every possible case, the decision of this Court must conform to the state of rights of the parties at the time of its own judgment: so that a treaty, although ratified subsequent to the decision of the Court appealed from, becomes a part of the law of the case and must control our decision.

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2. The evidence of that necessity
which will excuse a violation of an
embargo law, must be very clear
22
and positive. Id.

3. Cases of seizure, upon waters na-
vigable from the sea by vessels of
more than 10 tons burthen, for
breach of the laws of the United
States, are cases of admiralty and
maritime jurisdiction, and are to
be tried without a jury. Whelan
v. United States,

112

4. The letter of Mr. Merry of the
12th of April, 1804, extended, to
the island of Curragoa, the order
of the lords commissioners of the
admiralty, of the 5th of January,
1804, respecting the blockade of
Martinique and Guadaloupe. Ma-
ryland In. Co. v. Wood,

402
5. A sentence of a foreign tribunal,
condemning neutral property un-
der an edict unjust in itself, con-
trary to the law of nations, and in
violation of neutral rights; and
which has been so declared by the
legislative and executive depart-
ments of the government of the
United States; changes the pro-
perty of the thing condemned.
Williams v. Armroyd,

424

424

6. A sale by the authority of the cap-
tors, before sentence of condemna-
tion, is affirmed by such sentence,
as is good ab initio. Id.
7. A French tribunal at Gaudaloupe
had jurisdiction of property seized
on the high seas for breach of the

424

Milan decree, and carried into the
Dutch part of the island of St.
Martins, and there sold, by order
of the Dutch governor of St. Mar-
tins, before condemnation and
without any authority from the
French tribunal at Guadaloupe.
Id.
8. The American owner cannot re-
claim, in the Courts of this country,
his property which has been seized
and condemned in a French Court
under the Milan decree. Id. 425
9 An information, or libel for a for-
feiture, must be particular and cer-
tain in all the material circum-
stances which constitute the of-
fence. Brig Caroline v. United
States,

Schr. Hoppet v. U. States,
Schr. Anne v. U. States,

496

389

570

10. An informal libel, or information
in rem, may be amended by leave
of the Court. Id

Schr. Anne v. U. States,

496

570

389

Schr. Hoppet v. U. States,
11. In a count'in a libel upon the 50th
section of the collection law of
March 2d, 1799; for unlading
goods without a permit, it is not
necessary to state the time and
place of importation, nor the ves-
sel in which it was made; but it is
sufficient to allege that they were
unknown to the attorney of the
United States. Locke v. United
States.
339
12. "Probable cause" means less
than evidence which would justify
condemnation. It imports a sei-
zure made under circumstances
which warrant suspicion. Id. 339
13. A vessel of the United States
captured, condemned, sold, and
purchased by her former master,
a citizen of the United States, who
obtained a Danish burgher's brief,
and who cleared out of a port of
the United States as a Dane, is a
foreign vessel within the 5th sec-
tion of the act of 9th Jauuary,
1808, supplementary to the embar-
go act; although she was really
owned by a citizen of the United

349

States. Schooner Good Catharine
v. United States,
14. Under the non-intercourse law a
vessel, in March, 1811, had no
right to come into the waters of
the United States to enquire whe-
ther she might land her cargo.
Brig Penobscot v. U. States, 356
15. In a prosecution against a vessel
for violating a law of the United
States it is not necessary to adduce
possitive testimony of the identity
of the vessel. Schooner Jane v.
United States,
363
16. The non-intercourse act of
March 1st, 1809, was, by force of
the act of May 1st, 1810, and the
president's proclamation of No-
vember, 2, 1810, revived on the
2d of February, 1811. The Au-
rora v. United States.
383
Schr. Anne v. United States, 570
17. In a libel it is not necessary to
negative any fact which constitutes
the defence of the Claimant.
Id.
383
18. Wines, the produce of France,
imported into the United States
before the non-intercourse act, re-
exported to a Danish island, there
sold to a merchant of that place,
and thence exported to New Or-
leans during the operation of that
act of congress, were liable to for-
feiture under that law. Schooner
Hoppet v. United States, 389
19. An information in the admiralty

for a forfeiture must contain a sub-
stantial statement of the offence.
A general reference to the provi-
sions of the stature is not sufficient.
If the information be defective in
that respect, the defect is not
cured by evidence of the facts
omitted to be averred in the infor-
mation. The decree must be se-
cundum allegata, as well as secun-
dum probata. Schooner Hoppet
v. United States,

389

20. By the 11th section of the act of
25th of April, 1808, vol. 9, p. 150,
the collector had no right to detain
a vessel and cargo after her ar
rival at her port of destination, un-

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2. The United States are not bound
by the declarations of their agent,
founded upon a mistake of fact,
unless it clearly appear that the
agent was acting within the scope
of his authority, and was empow-
ered in his capacity of agent to
make such declaration. Lee v.
Munroe and al.

366
3. It the Plaintiff, by orders from the
Defendants, purchase goods for
them and draw on them for the
amount, they are bound to accept
and pay his bills. If they do not,
he may recover the amount there-
of (and damages and costs, if he
has paid the same) upon a count
for money paid, laid out and ex-
pended, and the bills of exchange
may be given in evidence on that
count. If, after protest of the bills,
the Plaintiff sell the goods without
orders, it shall not prejudice his
right of action, although he render
no account of sales to the Defen-
dants. Riggs v. Lindsay,

AGREEMENT.

500

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