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her before, unless she has forfeited her title to evident that a possession 80 obtained and held relief, by acquiescence or unreasonable delay. by Masa schusetts, under such circumstances,
But it has been argued, on the part of the cannot give a title by prescription. defendant, that assuming the agreement to The demurrer, therefore, must be overruled. have been made by mistake, and that the com But the question upon the agreements, as plainant would have been entitled to set it well as that upon the lapse of time, may as. aside if she had prosecuted her claim within a sume a very different aspect, if the defendant reasonable time; yet, as Massachusetts entered answers and denies the mistake, and relies into the disputed territory immediately after upon the lapse of time as evidence of acquies. the agreement, and has held it ever since, the cence, or of such negligence and laches as will complainant is too late in seeking relief; that deprive the party of his right to the aid of a after such a lapse of time, she is barred by pre- court of equity. It will then be open to him scription, or must be presumed to have acqui- to show that there was no mistake; that the esced in the boundary agreed upon; and that if line agreed on was the true charter line; or she did not acquiesce, she has been guilty of that such must be presumed to have been the such laches and negligence in prosecuting her construction given to the charters by the comclaim that she is no longer entitled to the missioners of both colonies; or that the agree countenance of a court of chancery.
ment was the compromise of a disputed bounThe answer to this argument is a very plain dary, upon which each party must be supposed
The complainant avers that she never to have had equal means of knowledge. acquiesced in the boundary claimed by the de So, too, in relation to the facts stated in the fendant, but has continually resisted it since bill to account for the delay. It will be in the she discovered the mistake-and that she has power of the complainant to show, if she can, been prevented from prosecuting her claim at that her long, continued ignorance of an error an earlier day by the circumstances mentioned (which, if it be one, was palpable and open), in her bill. These averments and allegations, was occasioned by the wild and unsettled state in the present state of the pleading, must be of the country; and that the subsequent delay taken as true; and it is not necessary to decide was produced by circumstances sufficiently conow whether they are sufficient to excuse the gent to justify it upon principles of justice and delay. But when it is admitted by the demur. equity; or was assented to by *Massa- [*274 rer that she never acquiesced, and has from chusetts, or occasioned by her conduct. And, time to time made efforts to regain the terri- on the other hand, it will be the right of the tory by negotiations with Massachusetts, and defendant to show, if she can, that Rhode Iswas prevented by the circumstances she men land would not have been ignorant of the true tions from appealing to the proper tribunal position of this line until 1740; or, if she regrant her redress, we cannot undertake to say mained in ignorance until that time, that it that the possession of Massachusetts has been must have arisen from such negligence and such as to give her a title by prescription; or inattention to her rights as would render it inthat the laches and negligence of Rhode Island exousable, and should be treated, therefore, as have been such as to forfeit her right to the if it had been acquiescence with knowledge; interposition of a court of equity.
or she may show that, after the mistake is ad In cases between individuals, where the stat. mitted to have ben discovered, Rhode Island ute of limitations would be a bar at law, the was guilty of laches, in not prosecuting her same rule is undoubtedly applied in a court of rights in the proper forum, and that the ex. equity. And when the fact appears on the cuses offered for the delay are altogether un. face of the bill, and no circumstances are founded or insufficient, and that Massachusetts stated which take the case out of the operation never assented to it, nor occasioned it. of the act, the defendant may undoubtedly We state these questions as points that will take advantage of it by demurrer, and is not remain open upon the final hearing, for the bound to plead or answer. The time necessary purpose of showing that the real merits of the 273"] to operate as a bar in equity is *fixed at controversy could not have been finally distwenty years, by analogy to the statute of limposed of upon the present pleadings; but withitations; and the rule is stated in Story's Com.out meaning to say that other questions may no Eq. Pl. 389, and is supported and illus. not be made by the parties, if they shall supstrated by many authorities cited in the notes. pose them to arise upon the procedings here. It was recognized in this court in the case of after to be had. The points above suggested, Elmondorf v. Taylor, 10 Whcat. 168–175. But which are excluded by the case as it now it would be impossible with any semblance of stands, make it evident that this controversy justice to adopt such a rule of limitation in the ought to be more fully before the court, upon ease before us. For here two political communi. the answer, and the proofs to be offered on ties are concerned, who cannot act with the both sides, before it is finally disposed of. same promptness as individuals; and the boun The court will, therefore, order and decree dary in question was in a wild unsettled coun that the demurrer be overruled; and that the try, and the error not likely to be discovo defendant answer the complainant's bill on or ered until the lands were granted by the re before the first day of August next. :spective colonies, and the settlements approached the disputed line; and the only tribunal that could relieve after the mistake was This cause on to be heard on the discovered was on the other side of the Atlan: amended bill and demurter, and was argued tác, and was not bound to hear the case anil by counsel; on consideration whereof, it is proceed to judgment, except when it suited now here ordered by this court that the said its own convenience. The same reasons that demurrer be, the same is hereby overruled; prevent the bar of limitations make it equally and it is also now further here ordered by this
sourt that the defendant answer the bill of O'Hara, for himself and for the other heirs of complaint, as amended, on or before the first Daniel O'Hara, presented a petition praying day of August next.
for the confirmation of a grant nf fifteen thousand acres of land made by Heury White, then the Spanish *Governor of East Florida, (* 276
on the 5th of September, 1803, to Daniel O'. 273*] *OLIVER O'HARA et al., Appellants, Hara, the father of the petitioners; and which
was alleged to have been confirmed on the 3d of THE UNITED STATES, Appellees. September, 1818, by the Spanish Governor Cop
pinger. Grant of land in Florida-nonperformance of The grant, and the proceedings on the same,
condition-omission to have land surveyed are fully stated in the opinion of the court. grant void.
Mr. Downing appeared as counsel for the
Mr. Gilpin, for the United States, contended:
Tomas de Aguilar, in the fork of that com.
mented upon in the case of the United States made a decree granting "the lands solicited" "at v. Wiggins, 14 Peters, 345. If this document the place indicated," "in conformity with the num
be regarded as sufficient to establish the fact ber of workers which he may have to cultivate them, the corresponding number of acres may be
that such a concession was actually made by surveyed to him," "and that he will take posses. Governor White; still there is no proof either Bion of said land in six months from the date of of possession, or survey, or citizenship of the the grant." Held, that this is a decree not grant: claimant; all of which were necessary to per, ing fifteen thousand acres as asked for ; but so mucb at the piace where it is asked for as shall be fect a grant in Florida, to any quantity of land surveyed in conformity with the number of work whatever. ers the grantee may have to cultivate the land ; the quantity could be determined by the regulation
The inemorial of the claimant to Governor of the governor, made the month after the grant, White is dated the 3d of September, 1803. He and determining the quantity of land to be surveyed according to the number of persons in the
says that he has but lately become an inbabit. family of the grantee, slaves included. That the ant of the province, and that he "intends to grant was made before the date of lue regulation, settle” there. Two days afterwards he receives makes ro i Terence.
this grant, and on the same day leaves the No settlement was made on the lands claimed under the grant. The building of a house on the province, to which, so far as the record shows, land is but evidence of an intention to make a set he never returned. Early in June, 1804, nine tlement, but was not a settlement, which required the removal of persons or workers to the land, and
months subsequent to the concession, an agent cultivating it.
at St. Augustine writes to him, as the record No claim for the land can be sustained under a shows, urging him to "take possession of his grant, or confirmation of a prior grani, made by a
lands" which he had not then done. On the decree of Governor Coppinger in 1810, as the same was substantially a violation of the Treaty with
20th of June, in the same year, we have the Spain, which confirms only grants made before the decree of the District Court of the United 24th January, 1819. The prior grant to O'Hara States at Savannah, in an admiralty proceedhaving become void by the non performance of the conditions annexed to it, the decree of Governor ing, where the claimant is a party. This shows Coppinger in 1818 was an attempt to make a new that the brig Chance, being bound a regular grant. If the grant were not void from the nonper
voyage from Jamaica to South Carolina with formance of the conditions of settlement annexed some negroes on board, had been captured by a to it. the omission to have the land surveyed and French privateer, and recaptured by a British returned to the proper office would make it yold, cruiser, and subsequently ransomed by the unless the grantee had made a settlement; in which event a survey would be presumed. The
claimant. It is alleged that these negroes were grant was made in the "district of Nassau." etc. ; the property of the claimant, who intended to this was an indefinite description of the land; as place them on the tract lately granted to him was held in Buyck v. The United States, decided at this term.
in Florida; but no evidence of such intention is
given; and if it existed it never was carried N appeal from the Superior Court of East / into effect, although the decree of the Court of
Admiralty was in his favor. A witness, FranIn the Superior Court of East Florida, Oliver Icis Marien, was produced to prove that, soon NOTE.—Description in deed must be definite; A grant of a specified number of acres, to be when void for uncertainty.
taken out of a larger quantity of land, passes title Certaloty, to a common intent, is sufficient. to them as an undivided portion, and a subsequent Thus where sheriff's' deed of all the right of D. in
location of the acres by the parties, pursuant to a certain lot of land on south of A. creek, but giv: the right of election given, followed up by possesing a description of only one line, commencing at sion, is good as a partition by parol.
Corbin v. the creek and running to a known farm. was held Jackson, 14 Wend. 619; Jackson v. Livingston, 7 sufficient, it appearing that D. had a lot lying be
Id. 136. tween the line, the farm, and the creek, and that
A sheriff's deed to a purchaser under an esecu. from this description, witnesses familiar with the tion, describing the premises sold, as "all the lands objects described could identify it. Dygert v.
and tenements of the defendants, situate, lving, Platts, 25 Wend. 402.
and being in the Hardenbergh patent," is void for A description by reference to another decd is
want of a sufficient description of the premises.
Jackson v. Roosevelt, 13 Johns. 97; S. P. Jacksou sufficient, where the other deed is produced, or its
v. Delancy, 13 Id. 537. contents proven, to enable the premises to be identified.
A sheriff's deed reciting that he exposed to sale Jackson v. Parkhurst, 4 Wend. 369.
a tract described, supposed to contain 400 acres, Where the description of the boundaries are "whereof about 100 acres were struck off," etc., somewhat vague and indefinite, the acts of the and then proceeding, in consideration of the sum parties, of goverument, and of those claining in hid, tv "grant the before mentioned premises to tb. der adjoining patents, are entitled to great weigbt sid.I. N., bis heirs and assigns forever. llele in tbe location of the grant. Jackson v. Vedder, 2 void for uncertainty. Pecky. Malams, 10 N. Y. Cal. 210: Jackson V. Wood, 13 Johns. 316.
6 Seld. 509.
after the grant, the claimant attempted a set comments, in strong language, on the course 277“) tlement; but it *appears from his cross pursued by persons who came into the prov. examination that he knew only "from general ince, hastily took the oath of allegiance, and information that lands were granted to the immediately left it. He declares *such [*278 claimant in East Florida; that the claimant in: | a proceeding to be an abandonment of the land formed him he had engaged a carpenter; and granted to them. The evidence in this case that the carpenter told him he was employed shows such a proceeding on the part of the for the purpose of building a house;" there is claimant. In the admiralty suit at Savannah, no evidence whatever of such a house being he declared himself to be, in June, 1804, a citi. commenced or built. From this time, until zen of the United States. He always resided August, 1821, after the actual cession of the there; never in Florida. Was not this clearly Floridas, there is no evidence of an attempt by an abandonment of any privileges he might the claimant at settlement and possession; in a have obtained by a short and temporary resiletter then written to him from St. Augustine dence in Florida in 1803? it is said that "endeavors will be used to put a But if the grant had been perfected by surfamily on his lands at Nassau, to begin a set-vey and possession, what was its character ! tlement and take possession, which is very nec- The claimant urges that it was a grant to him essary should be done.” That it was done then, of fifteen thousand acres of land, and he asks or subsequently, is neither asserted nor proved. to be confirmed in such a grant. But what It is clear, therefore, that at no time did the says the concession of Governor White, on claimant iccupy or settle on the land alleged which he relies ? It permits him to occupy to be granted to him.
lands, at the place indicated, "until the time Nor was it ever surveyed so as to perfect the when, in conformity to the number of work. grant. The survey, by the authorized public men whom he may have to cultivate them, the surveyor, was an essential requisite to every corresponding number of acres may be surveyed grant under the Spanish land laws. 2 White's to him;" and it requires that he shall “take New Rec., 230, 238, 278. The order of sur possession of the said land within the term of vey accompanied or shortly followed the con- six months from the date” of the concession. cession. None such is produced with this grant. The grant was thus conditional, altogether, on Parol testimony, taken after this suit began, the fact of possession within six months; the was introduced to establish, if possible, a sur- evidence is clear that there was no possession vey in 1811; but the survey, if made, is not whatever, at any time. But had he taken pos. produced, nor is there any evidence that it session, the quantity granted still remained was so made by the direction of any competent conditional; it depended on the number of authority. In March, 1819, after the te of workers, according to the regulations which the treaty ceding the Floridas to the United were freely discussed and passed upon by this States, a survey was made. It is that now re court in the case of The United States v. Wig. lied on by the claimant. It was not only made gins, 14 Peters, 341, 351. Where there were with out any authority, but when an order for no workers, there could not be "a correspond. a survey was solicited from Governor Coppin- ing number of acres surveyed” to the grantee. ger, it was refused. Had the order been then By his failure to introduce them, he abandoned granted, the survey would have been illegal, as his grant; it became “of no value or elsect, and was ruled by this court in the case of The should be considered as not made.” 2 White's United States v. Clarke, 8 Peters, 468; but, so New Rec., 284. The argument, that it was far from being granted, it was explicitly re- revived by Governor Coppinger, in 1819, can. fused.
not be maintained. If it had been so revived, Spanish citizenship was an indispensable req. it would be subject to the original terms of setuisite to the validity of a grant. The oath of tlement and cultivation by a proportionate allegiance was required as a primary condi- number of workers, which have never been tion. 2 White's New Rec., 232, 277. In complied with to this day. But it was not so despatch of Governor White to the Marquis of revived, and could not be. When the claimant Someruelos 2 White's New Rec., 258, 250, he applied to Governor Coppinger for an order of
In the case of an ambiguity in a sheriff's deed, i It a deed contains a description sufficiently cerproof of the intent of the sheriff, as to the prem. tain as to the estate to be conveyed, it will pass ises to be conveyed by sale, is incompitent.
the estate, although the estate does not agree with deed, in the description, follows the advertisement all the particulars of the description. Boswortby. and certificate of sale, It cannot be amended or re Sturtevant, 2 Cush, 392. formed. The statute requires a particular de. When a deed, conveying land, is of doubtful scription of the premises sold. Public policy re construction as to the boundaries, the construction quires distinct notice. The judgment debtor, and given by the parties themselves, as shown by their his creditors and mortgagees, are entitied to be acts and admissious, is deemed to be the true one, able to determine, witbout resort to extrinsic evi unless the contrary be clearly suown. Stone y dence, what premises have been sold. Mason v. Clark, 1 Met. 378. White, 11 Barb. 173.
The description in a deed referring to another That if the description 18 llegible, the deed deed, is made sufficiently certai.. by the reference. would be inoperative. Jackson v. Ransom, 18 Allen v. Bates, 6 Pick. 460. Job.8. 107.
Where a description in a deed is somewbat in. That a conveyance of "all my estate" lo sum definite and defective, proof that the vendee took ciently certain. Jackson v. Delancy, 4 Cow. 427. possession of the tract thus conveyed, and oc
A grant of land will not be held vold for uncer: cupied it, and that all the subsequent grantees tainty of description, 11, in the nature of things, It under him, of whom there were several, at tbe date seems possible to obtain testimony by means of of their respective conveyances took possession of which the particular parcel granted may be de.
tract and remained in oper and notoBlake v. Doherty, 5 Wheat. 359. rious possession of it until they paried with their A description in a deed of all the lands in a respective interests. Held, that the deed accom. specified common, which the grantor had not there panied by this evidence of identification and oc ore conveyed by the grant, is suficient. Scully . cupation of the land, was properly admitted. Sanders, 44 N. Y. Supr. 12 J. & S. 89.
Steinbach v. Stewart, 11 Wall. 666.
survey under the original grant, the indorse
Decreo. ment of the Governor was "not admitted."
St. Augustine of Florida, 6th September, Had it been admitted, it would have been a
one thousand eight hundred and three. violation of the eighth article of the treaty (6 Laws of United States, 618; 2 White's New hereby granted to him in the place indicated,
The lands solicited by the petitioner are Rec., 210), which declared all grants made since without prejudice to a third party, and until 279*] the 24th January, 1818, void; for *such the time when, in conformity to the number an act of Governor Coppinger would have been of workers whom he may have to cultivate clearly a new grant, subsequent to that day, them, the corresponding number of acres may the former one, of 1803, having become totally be surveyed to him; it being well understood void by the conduct of the grantee himself.
that he shall not claim indemnity for damages Mr. Justice Wayne delivered the opinion of or losses in the case; that under the apprehen. the court:
sion of an invasion, or otber motives relating to Appeal from the Superior Court of East the royal service, he be ordered to retire in the Florida.
interior of the province; and that he will take The appellants are the heirs of Daniel 0.. possession of the said land within the term of
White. Hara, and they claim the land in controversy, six months from this date. in virtue of an alleged grant, dated the 5th of
It will be perceived that the memorialist asks September, 1803.
for fifteen thousand acres, as it is his intention, The grant was adjudged in the court below with his vast property and numerous family, not valid.
to settle in the province. He asks for it at the The memorial for the grant; order of Govo place called Nassau, and if it cannot be found ernor White, to the commandant of engineers, vacant there, when the survey is made, that to report upon it; the report of that officer; the deficiency may be granted on the river St. and the decree of the Governor; are as follows: Marys; and he obliges himself to take possesHis Excellency the Governor:
sion witoin six months. The decree of the Don Daniel O'Hara, lately admitted an in- Governor is, the lands “solicited by the petihabitant of this province, under the protection tioner, are hereby granted to him in the place of His Catholic Majesty, with due respect rep: indicated;” “in conformity to the namber of resents to your Excellency, that intending to workers which he may have to cultivate them, settle in this province with a considerable prop the corresponding number of acres may be surerty and his large family, after having ascer: veyed to him;" "and that he will take posses. tained that all, or the greatest number of all sion of said land within the term of six months those who had petitioned for lands, have solic. from this date." ited to have them located in the southern dis.
*It is a decree, then, not granting (*281 trict, in the vicinity of Musquito River, and fifteen thousand 'acres
as asked for, but so after having consulted many neighbors in ref. much in the place where it is asked for as shall erence to vacant lands, as has no wish to enter be surveyed, in conformity to the number of into disagreeable litigation with other petition. I workers he may have to cultivate the land; and ers, or to injure them in any way, he begs of | as to what that quantity should be, there is no your Excellency, be pleased to grant him fif. uncertainty, for we have the regulation of teen thousand acres of land out of those lands Governor White, promulgated by him, the which are vacant between the rivers St. John month after the date of the decree, which and St. Marys, in the place called Nassau, and states, to each head of a family of a new setin case the said vacant lands do not compre- tler, there shall be granted fifty acres of land, hend the number of acres he solicits, he begs and an equal quantity to a single person, wid. your Excellency to have the goodness, when ow or widower, and to the children or slaves of the survey will take place, to grant him the sixteen years of age, twenty-five acres each. deficiency on the River St. Marys, and he obli; This regulation, then, determines, in that regates himself to take possession of the said spect, what the governor intended to grant; lands within the term of six months; which and the conclusion that the grant was to be in favor, he doubts not, he will receive from the conformity with the regulation, cannot be shaknoble munificence of your Excellency.
en by the suggestion that the decree was made Daniel O'Hara.
before the date of the regulation, as it might St. Augustine of Florida, third of September, be, if the grant had been for fifteen thousand one thousand eight hundred and three.
acres in terms. There is no grant for any 280*] *Decree.
quantity; when it is found that the decree St. Augustine, 3d September, 1803.-Let is restrained to a right to be determined by the commandant engineer inform on the sub- the number of workers which the memori. ject.
White. alist shall have, that the governor had the Having taken cognizance of the petition, and power to make a grant with such a restriction, in obedience to the preceding decree, I repre- and that so shortly after the decree was made sent to your Excellency that the culture of the as the following month, he promulgated a gen. lands solicited by the petitioner does not inter eral rule for grants to new settlers, the infer. fere with the defense of the province; there. ence is good, until it is contradicted by some fore, as far as the department of fortifications other fact, or other regulation applying to new is concerned, your Excellency may grant to settlers, that the memorialist was to take unhim the number of acres you see fit. This is der the decree in his favor as contemporary all I have to represent to your Excellency, who new settlers would have to take. The memori. will determine according to your pleasure. alist never made a settlement. The witness,
Nicolas Barcelo. Marien, says he did attempt a settlement; that St. Augustine of Florida, 5th September, 1803. 'a house was built; and that O'Hara informed 10 L. ed.
him he had employed a carpenter to build it; grantee had settled and occupied land under but the memorialist never took his family, nor that decree, in which event a survey might be negroes to the land. The construction of a presumed. The memorialist asks for lands in house was no compliance with the condition of the place called Nassau; and in the event of the grant. That act itself could not, under the whole quantity not being got there. for the the regulation, give a right to any number of deficiency to be made up on the River St. acres. The right vested upon the persons, black Marys. Such a place as the place called Nassau and white, who might be carried to make a is not known, unless is meant by it all the land settlement. The house is good evidence of an between Nassau River and the St. Johns and intention to settle with persons; but if the evi. St. Marys. It is equidistant, or nearly so, from dence discloses the fact that no persons or those rivers, and wends its way to the Atlantic workers were ever taken to it; that cultivation in a course of fifty or sixty miles. If the land was not begun; the inference is made the is to be taken on the Nassau, where shall a stronger that the rights of the memorialist un- survey be begun, and on what part of the St. der the decree were abandoned.
Marys shall the deficiency in quantity be taken, The record discloses an attempt by the me- supposing that a part can be found in the 282*) morialist, immediately after the decree "place called Nassau ?” The St. Marys is known of the governor, to get negroes from Jamaica as the boundary between Florida and Georgia, for a settlement; and that the vessel in which and that its head, or source, is on the Oquathey were embarked was taken into Savannah fanoche Swamp. It is navigable for a hundred and libeled in admiralty; but the proceedings miles from its mouth to the Atlantic, between in admiralty do not show that the memorialist Cumberland and Amelia islands. Where, then, was deprived, ultimately, of the negroes; and shall a survey begin in this range, under this if he was not, and the negroes were restored, decree? It is no answer to say, the decree no cause is shown why they were not taken to is for vacant land; and if there is vacant land Florida. But if they were not restored, it will there now, a survey could be made; for the scarcely be contended that an unfortunate at- place where the survey is to be made must first tempt to carry negroes to take possession of the be made certain, if not as to fixed boundaries, land fulfils the intention of a grant, the quan- at least so certain, by evidence of general or tity of which is to depend upon the number of popular apprehension, as to show what was the workers actually employed in cultivation. But grantor's notion of the limits of country withthere was not only a failure to settle in this in which he intended to grant. Unless, then, a case, there was an actual abandonment. We survey can be made of the original grant in the hear nothing of the memorialist, or of any at- place called Nassau, the alternative for any detempt to settle the land, from the spring of ficiency on the St. Mary's River cannot be 1804 until 1819. There never was a survey of shown; which alone would entitle the memor. any land, by authority, though one is alluded ialist to land there. This grant is therefore to, until March, 1819; and that was made with void, on account of uncertainty. It is not made, out the order of the Spanish authorities in as the court said in the case of Buyck v. The Florida. Inded, it was done against authori. United States, decided at this term, in such a ty; for we find from the testimony in the cause was as to distinguish it from things of a like that O'Hara petitioned Governor Coppinger, kind; nor has the identity of the grant been on the 20th April, 1819, within a few months shown by extraneous evidence. of sixteen years after Governor White's decree The judgment of the court is affirmed. had been given upon his memorial, for an order of survey upon the decree; and that it was refused. We have, then, in this fact, a denial of the memorialist's right to the land by a gov. ernor of Florida. There can be no doubt it -WILLIAM M. GWIN, Marshal of the [*284 was looked upon by Governor Coppinger as abandoned; and that the right to the same was
Southern District of Mississippi, Plaintiff in lost under the 9th article of Governor White's
Error, regulations, already spoken of as contemporary with the decree upon the memorial of O'Hara. JAMES H. BREEDLOVE, Defendant in Er. 2 White's New Rec., 278. It is not necessary
ror. for us to speak of a subsequent attempt by O'Hara to introduce negroes into Florida, in Judgment of dismissal under the 43d rule1819, and its failure. This right to the land
cause may be re-instated. originally asked for had ceased; he could make no claim under the decree of September, 1803,
A case, on a writ of error to the Southern Disand a revival of the old grant by the Spanish on the 9th of February, of the present term, upon
trict of Mississippi, was docketed and dismissed authorities would have been substantially a motion of the defendant in error, under the fortyviolation of the Treaty with Spain, which only third rule of the court; and on the 11th of Februconfirms grants made before the 24th January, issue to the Circuit Court, to proceed in the case; 1818.
which was issued on the next day. On the 6th of With this view of the case, we think the de. March, the plaintiff in error appeared in court by cree of the court below should be affirmed.
his counsel, and produced and filed with the clerk
the record of the case, and moved to strike off the But, if the right of the appellants had not judgment of dismissal, and to continue the case. been lost by their neglect to settle the land with der the rule. is a judgment nisi; and it inay be
The judgment of dismissal un283*] workers, we should say the grant *itself stricken out" at any time during the court, upon was too indefinite to convey any land, unless a motion ; unless it appears that the omission to fie survey had been made, and had been recog.
the record and docket the case, at an earlier pe. nized by the Spanish authorities; or unless therests of the defendant in error.
riod of the court, had been injurious to the inter
The motion to re