conformity with the royal order of Spain of 1790, It cannot be supported" but immediately proceeds to show, "though the royal order is recited in the grant, that it was, in fact, founded on the meritorious consideration of the petitioner having constructed a machine of great value for sawing timber; the recital of the royal order of 1790, in this grant, is entirely immaterial, and does not affect the instrument." Held, the recital of the royal order, in this case, is quite immaterial.

The case of the United States v. Wiggins, (14 Peters, 325), which decided that certain proof of the certificate of Aguilar, Secretary of East Flori: da, was sufficient, cited; and the decision on that point affirmed. The Spanish governors of Florida had, by the laws of the Indies, power to make large grants to the subjects of the crown of Spain. The royal order of Spain of 1790 applied to grants to foreign ers. These large grants, before the cession of Florida to the United States, had been sanctioned for many years by the King of Spain, and the authorities representing him in Cuba, the Floridas, and Louisiana. This authority has been frequent ly affirmed by the Supreme Court.

An application was made to the Governor of Florida in 1814, stating services performed by the petitioner for the government of Spain, and the Intention of the petitioner to invest his means in the erection of a water saw-mill; and marking the place where the lands were situated which were asked for. The Governor granted the land, referring to the merits and services of the applicant, and in consideration of the advantages which would result to the home and foreign trade by ne Held, that use proposed to be made of the land. this was not a conditional grant, and that no evidence of the erection of a water saw-mill was required to be given to maintain its validity or induce its confirmation.

Stores."

The claim was alleged to be founded on a 131*] grant, dated November *8, 1814, by Governor Kindelan, the Spanish Governor of East Florida. The claim was opposed by the United States.

The Superior Court of East Florida decided in favor of the claimant, and the United States prosecuted this appeal.

The case is fully stated in the opinion of the court.

It was argued by Mr. Gilpin, Attorney-General for the United States, Mr. Downing appeared as counsel for the appellee.

Mr. Gilpin contended that the decision of the court below should be reversed, on the following grounds:

1st. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made.

2d. That if it be proved or admitted that the alleged grant or concession was ever made, still, that the same was not in conformity to the royal order of 29th October, 1790, by virtue of which it is declared that the concession was made.

3d. That if it be proved or admitted that the alleged grant or concession was ever made, and that it was in conformity to the royal order of 29th October, 1790, still, that the same was granted or conceded on the condition that the claimant should build a water saw-mill on the

land so conceded; which condition never has been complied with.

4th. That the concession, if ever made, being conditional, and the conditions unperformed, it was incumbent on the claimant to assign reasons sufficient for the nonperformance, which he has not done.

Mr. Gilpin. This is a claim for sixteen thousand acres of land, on the west side of the River St. Johns, founded on an alleged concession to Robert M'Hardy, by Governor Kindelan, dated 8th November, 1814.

The Superior Court of East Florida adjudged the claim to be valid. The correctness of this

decree is contested by the United States, because there is not, as they allege, competent evidence to establish the concession to M'Har dy; and because, if the concession ever was made, a legal title to the land conceded never accrued to the grantee.

I. The original concession of Governor Kindelan never has been produced. The sole evidence of it is an alleged copy, *certified [*132 by Aguilar, the Governor's Secretary. The circumstances under which copies thus certified will be admitted as evidence of a grant, have been declared by this court, in the cases of The United States v. Percheman, 7 Peters, 84; The United States v. Delespine, 12 Peters, 656; and The United States v. Wiggins, 14 Peters, 348. In the first, the court held that the original must be produced, if either party suggested its necessity; and in the second, there was direct evidence of the existence of the original. In the last case, the court admitted the copy, without any direct evidence to that effect; but on the express ground that the presumptive tes timony of the existence of the original was very strong, and also that there was a survey proved in conformity with, and referring to the original grant. It is admitted that if the evidence brings the present case within the rules established in the case of The United States v. Wiggins, the concession is proved. But is such the fact? There was no survey made until 1819, nearly five years after the grant; and it was then made by a person other than the surveyor designated in the order of survey, and at a place different from that named in the grant. The proof that the order of survey was signed by Governor Kindelan is far from direct; the signature is identified by a single witness only, and by him with some expressions of doubt.

II. But if the making of the concessions in 1814 by Governor Kindelan is established, had a title under it valid by the Spanish law accrued to M'Hardy on the 24th January, 1818, so as to be ratified and confirmed by the eighth article of the treaty? 6 Laws of United States, 618; 2 White's New Rec. 210. The concession is "a square of five miles," granted, as it states, "in consideration," first, "of the advantages which will result in favor of the home and foreign trade of the province;" and, second, “in conformity to the provisions of the royal order of 29th October, 1790, in relation to the distribution of lands to the new inhabitants." The first consideration, evidently has allusion to the statement of M'Hardy, in his memorial, that "he intended to invest his means in the erection of a water saw-mill, in consideration of the great scarcity of lumber in the province, both in regard to the home consumption and to the

This grant is a mere concession; it is not a complete and absolute grant; to make it so, further acts were necessary on the part of the Spanish government and of the grantee; these were, a compliance with the provisions of the royal order of 1790, and with the promise to erect a saw-mill: both of these were conditions annexed to the grant, and neither having been complied with, the grant is not valid.

1. The royal order of 1790, 2 White's New Rec. 365, did not authorize the Governor of East Florida to make such a grant as the claim ant contends for. That order was issued, as it declares, for the purpose of inviting foreigners into the province; but M'Hardy was not a foreigner. It limited the quantity of land that might be granted to a fixed number of acres, proportioned to the number of workers actually employed; M'Hardy employed no workers. An absolute grant of sixteen thousand acres to a Spanish subject, who made no settlement, could not, therefore, be valid under the authority of the royal order of 1790. This point is distinctly adjudged by this court in the case of The United States v. Clarke, 8 Peters, 448. There, the grant recited the royal order of 1790, and also that Clarke "had constructed, from his own ingenuity, a certain machine" of great value. This court, passing upon the grant, said that "it was too plain for argument that, if its validity depended on its being in conformity with the royal order of 1790, it could not be supported;" and they held it to be valid only because it did not depend upon that order, but on the other motives expressed in the grant. If the same rule be applied, as it must be, to the present case, then the claim of M'Hardy to sixteen thousand acres cannot be valid under the royal order, but must depend on the other considerations stated by Governor Kindelan. But it is submitted that the recital, in this grant, by Governor Kindelan, of the royal order of 1790, was not superfluous or incorrect. It is the inference drawn from that recital by the claimant which is erroneous. The grant 134*] does not purport to be made "by virtue of" the royal order of 1790, which was applicable especially, if not exclusively, to foreigners; but it was made to a Spanish subject, "in conformity to the provisions" of that order; that is, according to the regulations which required settlement and cultivation by a certain number of workers. Under the power which the governor possessed of making grants for services, he made this concession to M'Hardy for those to which he had, in his memorial, called his attention; but as the grant was large, the governor required that he should either comply with the provisions of the royal order, which were recited in the concession, or erect a mill which would be "favorable to the home and foreign trade of the province." Had the claimant settled the tract, and placed upon it the

2. It is, however, valid, although the provisions of the royal order of 1790 were not com plied with, if the other condition was executed if the water saw-mill was erected. Was this done? It is admitted that it was not; and, to obviate the want of all evidence to that effect, it is argued that the terms of the grant do not imply that such erection is a necessary condition: and that, under the decisions of this court, such a grant is perfect without any such proof. That the terms of the grant imply such a condition is apparent from its face. It is stated to be made "in consideration" of the advantages that are to result from such an establishment; the allusion to the petitioner's merits is not adduced as one of "the considerations" of the grant; they are not of a character to warrant any donation, much less one of such unusual magnitude; they are more than compensated by making him the grant, subject to the provisions of the royal order of 1790 in regard to settlement and cultivation; any other grant, any possession of the land, unattended with a compliance with these provisions, was intended to be coupled with this condition of building the saw-mill, which he proposed himself. In the cases of The United States v. Kingsley, 12 Peters, 476, and of The United States v. Burgevin, 13 Peters, 85, it was distinctly held that, where there was a condition in the grant that a saw-mill should be erected, no title accrued without proof of its having been built. *It is true that in those cases the con- [*135 dition was stated in the grant in terms more explicit than in the present case; but this cannot affect the principle established by the court. If there be a condition in the grant itself, ascertained from its language, and evincing the intent of both parties at the time the grant was made, the particular language in which the condition is couched is immaterial. The cases of The United States v. Clarke, 8 Peters, 448, and of the United States v. Segui, 10 Peters, 306, do not conflict with these positions. In the former, the grant was not in consideration of a saw-mill to be erected, but in consideration of the applicant having already constructed, from his own ingenuity, a peculiar mill of great value. In the case of The United States v. Segui, this court did indeed hold that where a grant was made in absolute property, they would not attach a condition, from the mere fact that the erection of a sawmill had been stated as an inducement in the memorial; but it is evident, from the report of that case, that this statement was merely in the memorial, and not repeated as "a consideration" by the governor in the grant itself. In the present case it is otherwise; this consideration appears, not merely in the memorial, but in the grant; and besides, it is not, as Segui's was, a grant "in absolute property."

It is therefore submitted that the concession, if ever made, was conditional; that the conditions are unperformed, and, therefore, that the grant is not valid.

commission on the amount of public money received by him during a year commencing from the date of his appointment, instead of calculating it by the fiscal year, which commences with the calendar year, on the first day of January in every year. He had a right to charge the whole yearly

maximum of commissions, for the fractional por

tion of the year in which he resigned.

entitled to two thousand five hundred dollars commissions.

To this charge of the court the United States excepted, and prosecuted this writ of error; a ing been given, conformably to the opinion of verdict and judgment for the defendants hav

this court.

The case was argued by Mr. Birchard and

States for the Southern District of Missis

sippi.

Samuel W. Dickson, the defendant, was appointed by the President of the United States, receiver of public money for the Choctaw district, in the State of Mississippi, and entered on the duties of his office on the 22d November, 1833, and retained the office, performing the duties thereof, until the 26th July, 1836, having on that day resigned the same.

The United States claimed a large balance as due to them, and the defendant paid, in Natchez, the whole sum alleged to be due by him, with the exception of the items charged 142] to him in the treasury transcript, which were the subject of controversy in this

case.

A suit was instituted by the United States on the official bond of Samuel W. Dickson and his sureties, in May, 1839, in the District Court of the United States for the Southern District of Mississippi, in which the United States claimed certain sums of money received by Samuel W. Dickson, as receiver, and not paid over to the United States. These sums were claimed by the defendant, and had been retained by him as his official compensation for the annual period of his service in the office, from the 22d November, 1833, and for the fraction of the last year in which he was in office, commencing on the 22d November, 1835, and ending on the 26th July, 1836; during which latter period he had received public money exceeding in amount two hundred and fifty thousand dollars.

On the trial of the cause the court charged the jury that the defendant Dickson was entitled to credit for three thousand dollars as compensation, including his salary of five hundred dollars for the year commencing November 22, 1833, and ending November 22, 1834; that he was entitled to the same compensation for the year commencing November 22, 1834, and ending November 22d, 1835; and for the fraction of the year between the 22d November, 1835, and the 26th July, 1836, he was ing a provision impairing the obligation of contracts but merely leaves them to operate, so far as coustitutionally they may, in the cases specified in the saving clause. Sturgis v. Crowninshield, 4 Wheat. 122.

It was held by all the barons of the Exchequer that where the proviso of an act of Parliament was directly repugnant to the purview of it, the proviso should stand, and be held a repeal of the purview, because it speaks the last intention of the law-giver. It was compared to a will, in which the latter part, if inconsistent with the former, supersedes and revokes it. The Attorney-General v. The Governor and Co., of Chelsea Water-Works, | Fitz. R. 195.

There is also a technical distinction between & proviso and an exception in a statute. If there be an exception in the enacting clause of a statute, it must be negatived in pleading; but if there be a separate proviso, that need not, and the defendant must show it by way of defense. Spieres v. Parker, 1 Term, 141; 1 Barn. & Ald. 99; Thibault v. Gib son, 12 Meeson & Welsby, 88, 740.

States. No counsel appeared for the defendants.

Mr. Birchard, for the United States, contended that the court erred—

1st. In allowing the receiver to calculate his yearly commission on the amount of public money received in a calendar year, commencing with the date of his appointment, instead of the fiscal year fixed by law.

*2d. In allowing the receiver the [*143 whole yearly maximum of two thousand five hundred dollars of commissions for the fractional portion of the year in which he resigned.

In this case the accounting officer settled the accounts, as is required by law, quarterly; the last quarter of each year terminating on the 31st day of December, annually.

The instruction given to the jury by the court below makes his first year commence on the 22d day of November, 1833, and end twelve months thereafter; and so of the succeeding years. The fractional period, which it treats as a full year, begins November 22d, 1835, and ends July 26th, 1836. It treats the terms used in the statute, "any one year," as any period of time, equal to twelve calendar months, whether it consists of portions of any two fiscal or calendar years. It disregards the beginning of quarters, weeks, or months, and has no reference to the accounting days by quarters, or the fiscal year established by law, and recognized by Congress and the department from the first establishment of the treasury to the present time.

It is respectfully submitted that the entire legislation of Congress shows that the terms "any one year," when used in reference to the subject of accounting, import that portion of time intervening between the 1st day of January and 31st day of December; and that to give the phrase, as used in the Act of 20th April, 1818, 3 Story, 1710, any other meaning, or such a meaning as will make it embrace any twelve consecutive months, composing parts of any two years, will subvert the design of

The office of a proviso, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent. Minis v. U. S. 15 Pet. 445; Boon v. Jullet, 1 Scammon's, Ill. R. 258.

In construing, a proviso may be limited to the general scope of the enacting clause to avoid re pugnancy. 19 Vermont, 129.

In Saving Institution v. Makin, 23 Me. R. 360, it was held, that a saving clause in a statute, in the form of a proviso, restricting in certain cases the operation of the general language of the enact ing clause, was not void, though the proviso be repugnant to the general language of the enacting lause. The true principle undoubtedly is, that the sound intepretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, are to prevail. If the principal object of the act can be accomplished and stand, under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy.