the assignment of his own, he had a right to offset it in MANDEthis suit. On the other side it was said that it was immaterial by which law the note was to be governed; for it was made with a view. expressed on its face, to be disounted by the Plaintiffs; whereby the Defendant had waived. any offset to which he might have a right. Besides which, upon being informed that the note was discounted by the Plaintiffs, he did not object, nor insist upon his sett-off, but sad he had funds, (meaning funds of Nourse's) to meet it. By which conduct a so he waived his right to the sett-off. Feb. 9th. MARSHALL, Ch. J. delivered the opinion of the Court as follows: It is entirely immaterial whether this question be governed by the laws of Virginia or of Maryland By neither of them can the discounts claimed by the Plaintiff in error be allowed. By making a note negotiable in bank, the maker authorizes the bank to advance on his credit to the owner of the note the sum expressed on its face. It would be a fraud on the bank to set up offsets against this note in consequence of any transactions between the parties. These offsets are waiv d and cannot, after the note has been discounted, be again s t up. The judgment is to be affirmed with damages at the rate of 6 per cent. per annum, VILLE v. UNION BANK. MEIGS AND AL v. M.CLUNG'S LESSEE. 1815. Feb. 11th. Ibsent....JOHNSON, J. & TODD, J. ERROR to the Circuit Court tor the district of East In the treaty Teunesse, in an action of ejectment brought by of the 25th of October, 1805, with the Che. MEIGS & AL. บ. M'CLUNG'S miles square On the trial in the Court below, a bill of exceptions was taken, which stated the case as follows: The Plaintiff's lessor claims the land under a grant LESSEE. from the state of North Carolina, to John Donelson, dated the 11th of July 1788, for 1500 acres lying on the rokees, the re- north side of Tennessee river, opposite to a high bluff of scrvution of 3 rocks of diverse colors. The Defendants resided on the for a garrison, the land as officers, and under the authority of the United States who had a garrison there and had erected nouth of the works at an expence of 30,000 dollars. The place where Highwassee, the Defendants resided was two miles at least above the where the U. S. have placed termination of the treaty line opposite the mouth of the the garrison. Highwassee. In 1805 the line between the United States lics below, and not above the and the Cherokee Indians was run, according to the treaty, under the direction of the Defendant, Meigs, wh was an agent of the United States for that purpose; and afterwards the garrison reserve of three square miles was laid off by the direction of the Defendant, Meigs, opposite and above the mouth of the Highwassee river, making the treaty line from the three forks of Duck river to the point on Tennessee river opposite the mouth of Highwassee the lower line of said reservation, and the Tennessee river the southern line, meandering the river and reducing it to a straight line of three miles in length. The Defendant's read a copy of a letter written by D. Smith and the Def ndant, Meigs, who were commissioners on the part of the United States, at the treaty holden with the Cherokee Indians, on the 25th of October, 1805, dated at Washington, January 10th, 1806, and addressed to the secretary at war; in which they say "by the treaty with the Indians concluded at Tellico on the 25th day of October, 1805, there was reserved three square miles of land fer the particular disposal of the United States, on the north bank of the Tennessee, opposit» to and below the mouth of Highwassee. This reservation is ostensibly predicated on the supposition that the garrison at south west point, and the United States factory now at Tellico, would be placed on the reserve during the pleasure of the United States. But it was stipulated with Doublehead that whenever the United States should find this land unnecessary for the purposes mentioned, then it is to revert to Doublehead; provided, as a condition, that he retain one of the square miles to his own use, MEIGS & AL. v. and that he is to relinquish his right and claim to the other two sections ot, one mile square each in favor of John D. Chisholm and John Riley, son to Samuel Riley, one of the interpreters in the Cherokee nation in equal M'CLUNG'S shares." As it is proper that this be recognized we have made this statement for your information, And have the honor to be, &c. DANIEL SMITH, When the Defendant and the other officers of the United States went to look for the place to erect the garrison in pursuance of the reserve, they went first below the mouth of Highwassee; But it was a low and marshy country, affording no good scite for a garrison and no water or spring was to be had there. The Plaintiff's counsel insisted that the Indian title to the land was extinguished and that he had a right to recover, and prayed the Court so to instruct the jury; to which the Defendant's counsel objected and insisted that the Defendants were entitled to recover against the Plaintiff, because the Indian title was not extinguished; and because the land was occupied by the United States' troops, and the Defendants as officers of the United States, for the benefit of the United States, and by their direction; and because the garrison was erected on the land really reserved for that purpose by the treaty; as they insisted it was out of the land ceded that th reserve was made. That it must, by the letter of tu treaty, be understood to be land reserved to the Indians, out of the part ceded, and not a reserve in favor of the United States, out of the land not ceded by the Indians; and that the term "reserve” in the treaty controlled the other expressions, opposite "and below the mouth of Highwassee." That the United States had a right by the constitution to appropriate the property of individual citizens; and that the line run, was the true line of the reservation. But the Court over ruled the objections of the Defendant's counsel, and charged the jury that the land reserv LESSEE. MEIGS & AL. ed for a garrison was opposite to and below the mouth of the Highwassee, and that the land opposite to and above was ceded to the United States by the Indians by M'CLUNG's the treaty of Tellico, and that the United States had no LESSEE right to appropriate the land mentioned in the Plaintiff's declaration. And that the Plaintiff was authorized by law to recover, if the land covered by his grant lay opposite to and above the mouth of the Highwassce That if the treaty had expressly reserved the three miles square for the disposal of the United States opposite and above the mouth of Highwassee, the Indian title would be thereby extinguished, as that reserve would be north of the treaty line. That if the land thus reserved was at the time vacant land the United States could appropriate it as they pleased; but if it was private property the United States could not deprive the individual of it without making him just compensation therefor. And further, that by the expressions used in the said treaty, the Indian title to all land north of the treaty line, from the point opposite the mouth of Highwassee to fort Nash, except such tracts as were expressly reserved for the Indians, was extinguished; and that the three square miles, reserved for the United States, must, according to the treaty, be situate opposite and below the mouth of Highwassee. To this opinion the counsel for the Defendants excepted. By the 24 art. of the treaty of 25th October 1805. (Laws of United States, vol. 8. p. 192.) "The Chero"kee's quit claim and cede to the United States, all the land which they have heretofore claimed, lying to the "north of the following boundary line: beginning at the "mouth of Duck river, running thence up the main "stream of the same to the junction of the fork, at the "head of which fort Nash stood, with the main south "fork; thence a direct course to a point on the, Tennes"see river bank opposite the mouth of Highwassee ri❝ ver." &c. After describing the other lines of the cession, the treaty proceeds thus, and whereas, from the present ces❝sion made by the Cherokees, and other circumstances, "the scite of the garrisons at south west point and Telli❝co are become not the most convenient and suitable places for the accommodation of the Indians, it may become MEIGS & AL. v. "expedient to remove the said garrisons and factory to "some more suitable place; three other square miles are re"served for the particular disposal of the United States on "the north bank of the Tennessee, opposite to and below M,CLUNG'S "the mouth of the Highwassee." C. LEE, for the Plaintiffs in Error. The points in dispute in this cause are stated in the bill of exceptions. The principal question is whether the three miles reserved for the use of the United States are to lay below or above the mouth of the Highwassee. We say that it was the intention of the parties that they should lye above. The expression "reserved" imports an exception to the cession. The reservation must have been out of the land ceded. The United States could not reserve what was not theirs before; but for the accommodation of the Indians they reserve three miles square for the use of the United States, It was intended to prevent the extinguishment of the Indian title to so much in order to prevent individuals from purchasing it. The letter of Smith and Meigs to the secretary of war shows that the land was to revert to Doublehead and two others, whenever the United States should cease to have a use for it. It was therefore clearly a reserve, or exception from the general operation of the grant. It would be inconsistent with the faith of the treaty to suf fer any individual to possess it. JONES, contra, Relied upon the plain words of the treaty. The word "reserve" is the only thing that can justify a question; but it means to appropriate" to "set apart" to hold it for the use of the U. States, for the purpose of a garrison, but not to make an absolute grant or cession of the land. The expression "three other square miles," shows that they meant other than the land ceded. The letter is not evidence; it is no part of the treaty; it was never ratified by the senate; and is unimportant if it was. It, however, shows that there was no mistake in the word " below" in the treaty. LESSEE. |