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extent and for the purpose we have supposed | the terms, have we thereby appropriated the to have been had in view. It is all the provision there is upon the subject; and in so far as it falls short of the adoption of laws for the direction of the courts, the defect is still unprovided for. The common law has never been otherwise adopted, nor have the courts power to create or adopt laws; they must administer the law as existing.

In support of this position it would be sufficient perhaps to refer to the cases of The United States v. Worrall, 2 Dallas, 384, The United States v. Burr, opinion delivered by the Chief Justice, Sept. 3d, 1807; The United States v. Hudson & Goodwin, 7 Cranch, 32; The United States v. Coolidge, 1 Wheaton, 415.

In these cases, it is true, the question was, whether the courts of the United States had jurisdiction of crimes and offenses at common law, which had not been provided for by the Constitution or laws of the United States; but they involved the general question, whether the common law had been adopted; for if it could be referred to at all, it was equally a source of jurisdiction as it would be the rule of decision. 12*] Accordingly, in the discussion of the question, it was thought necessary to assume, in the utmost latitude, that the common law was the basis of our federal jurisprudence, as it was of the several States; and the decision ought to be regarded as co-extensive with the ground upon which the jurisdiction was asserted, and to have finally disposed of it.

Yet, as the court were not unanimous, and the subject has been since debated with much learning and zeal by distinguished writers (see Duponceau on the Jurisdiction of the Courts of the United States; 1 Kent's Commentaries, 311, 322; North American Review, July No. 1825; 1 Story's Commentaries on the Constitution, 141), it may not be supererogatory to examine it anew, as the question is now presented in a form that calls for a specific and final decision of the whole matter.

It would seem to be a self-evident proposition, that the adoption of the common law must have been by the Constitution or legislative enactment. Surely, the courts could not of their own authority establish as the law of the land a foreign code or system, no matter how consonant with our political character, or how familiar its principles. By the same authority they could as well have adopted the civil law as existing in France or Holland as the English law.

entire common law, and become subject to its authority? Do we not borrow terms in science and arts without being pledged to the principles to which they may have been applied? The physician derives his nomenclature from the Greek language; but is his practice controlled by the false notions which those [*13 terms often indicate, or the theories of those who invented them? The common law itself has borrowed terms of pleadings and processes and familiar proverbs from the civil law, but do we look to the original for any supposed obligation? Our law idiom is essentially of common law origin, yet not foreign. It is the language familiar to us in the jurisprudence of the respective States. It is there assimilated and modified by our own circumstances and usages. In coming together with their respective States, the framers of the Constitution, and our representatives in Congress after them, must be regarded as having had in view the language, laws, and institutions of the States which they represented. If, therefore, in the organization of the federal judiciary, a system of laws is pre-supposed, it is the American law, which is now as distinct in its character as the English or French; yet, as it is not uniform in the States, the adoption of it in the federal courts would be necessarily subject to some legislative provision, as to the cases and circumstances to which the law should be applicable. The general language of the law would, however, obviously occur, and be used in any legislation upon the subject, without the necessity of definition as might be required, if some foreign code or any of its provisions were to be transferred and appropriated, like the Athenian law, which was transmuted in a mass by the Romans, into the twelve tables.

But it is said that some of the provisions of the Constitution can take effect only by recourse to the common law, as the clause in article 3, section 2, extending the judicial power to all cases in law and equity, arising under the Constitution, etc., and to admiralty and maritime jurisdiction. The laws and practices of the States, it is argued, cannot be referred to here, because in many of them no equity jurisprudence existed, and the maritime law of the States is supposed to have been too imperfect and unsettled to furnish any basis for that department of law. 1 Gall. 488.

To this it may be answered, that although in some of the States there were no equity tribunals But, although it is conceded that there is no distinct from the common law courts, yet the express recognition or adoption of the common principles of equity, as distinguished from those law, either in the Constitution or laws of the of common law, were perfectly understood in United States, it is contended that the Consti- every State, and were in fact administered, altution pre-supposes, and is predicated upon though in some of them without the aid of a the existence of the common law. Justice court of chancery. The present organization Story, in The United States v. Coolidge, 1 Gall. of the federal courts in fact conforms with the 448; Bayard's Speech, Debates on the Judici-usage of those very *States where this [*14 ary, in 1802, p. 372, North American Review, defect of equity power is supposed to exist, before cited. there is an equity jurisprudence fully carried

Mr. Justice Story refers to the provisions in into effect, without separate courts of equity. the Constitution and laws, in respect to trial As to the maritime jurisdiction and course of by jury, the writ of habeas corpus, etc., as in-proceeding, it was sufficiently settled; for the stances when recourse must be had to the com- proceedings of our courts in the exercise of that mon law for the interpretation of terms. 1 Gall. 488.

These observations are just-but what is the conclusion therefrom? Because we have used

jurisdiction, are regulated now, not by the English admiralty law, but by the practice in our own country, engrafted on the English. 10 Wheaton, 473.

Mr. Dana cited the debates on the Constitu- |point or question of law: whether, under the tion of the United States in the Convention of facts last mentioned, the defendant was entitled Virginia and in other States to show that with- to the same defense to the action as if the suit out the aid of a statute the common law cannot was between the original parties to the bill, be called in aid of the jurisdiction of the courts, that is to say, Norton, or Norton and Keith, or for rules of decision as to the necessity of and the defendant; and whether the evidence legislation for the authority and manner of pro- so offered was admissible as against the plain ceeding in the courts of the United States; he tiff in the action. And this is the question cer cited the opinion of Mr. Justice Iredell, in Chis- tified to us for our decision. holm's Executors v. The State of Georgia, 2 Dallas, 432. That the provisions of the twentyfourth section are not confined to "statutes," he cited, as decided in this court, Jackson v. Chew, 12 Wheaton, 153; Henderson et ux. v. Griffin, 5 Peters, 151; Green v. Neal, 6 Peters, 291, The United States v. Wanson, 1 Gallison, 5; Van Reimsdyke v. Kine et al. 1 Gallison, 371.

Mr. Justice Story delivered the opinion of the court:

This cause comes before us from the Circuit Court of the Southern District of New York, upon a certificate of division of the judges of that court.

There is no doubt that a bona fide holder of a negotiable instrument for a valuable consider. ation, without any notice of facts, which impeach its validity as between the antecedent parties, if he takes it under an indorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although as between the antecedent parties the transaction may be without any legal validity. This is a doctrine so long and so well established, and so essential to the security of negotiable paper, that it is laid up among the fundamentals of the law, and requires no authority or reasoning to be now brought in its support. As little doubt [*16 The action was brought by the plaintiff, is there, that the holder of any negotiable paper, Swift, as indorsee, against the defendant, before it is due, is not bound to prove that he Tyson, as acceptor, upon a bill of exchange, is a bona fide holder for a valuable consideradated at Portland, Maine, on the 1st day of tion, without notice; for the law will presume May, 1836, for the sum of one thousand five that in the absence of all rebutting proofs, and hundred and forty dollars, thirty cents, pay-therefore it is incumbent upon the defendant to able six months after date and grace, drawn by one Nathaniel Norton and one Jairus S. Keith upon and accepted by Tyson, at the city of New York, in favor of the order of Nathaniel Norton, and by Norton indorsed to the plaintiff. The bill was dishonored at maturity.

At the trial the acceptance and indorsement of the bill were admitted, and the plaintiff there rested his case. The defendant then introduced in evidence the answer of Swift to a bill of discovery, by which it appeared that 15*] Swift took the bill before it became due, in payment of a promissory note due to him by Norton and Keith; that he understood that the bill was accepted in part payment of some lands sold by Norton to a company in New York; that Swift was a bona fide holder of the bill, not having any notice of anything in the sale or title to the lands, or otherwise, impeaching the transaction, and with the full belief that the bill was justly due. The particular circumstances are fully set forth in the answer in the record; but it does not seem nec essary further to state them. The defendant then offered to prove that the bill was accepted by the defendant as part consideration for the purchase of certain lands in the State of Maine, which Norton and Keith represented themselves to be the owners of, and also represented to be of great value, and contracted to convey a good title thereto; and that the representations were in every respect fraudulent and false, and Norton and Keith had no title to the lands, and that the same were of little or no value. The plaintiff objected to the admission of such testimony, or of any testimony, as against him, impeaching or showing a failure of the consideration on which the bill was accepted, under the facts admitted by the defendant, and those proved by him, by reading the answer of the plaintiff to the bill of discovery. The judges of the Circuit Court thereupon divided in opinion upon the following

establish by way of defense satisfactory proofs of the contrary, and thus to overcome the prima facie title of the plaintiff.

In the present case, the plaintiff is a bona fide holder without notice for what the law deems a good and valid consideration, that is, for a pre-existing debt; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, "under the circumstances of the present case," for the acceptance having been made in New York, the argument on behalf of the defendant is, that the contract is to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its courts, as well upon general principles, as by the express provisions of the 34th section of the Judiciary Act of 1789, ch. 20. And then it is further contended, that by the law of New York, as thus expounded by its courts, a pre-existing debt does not consti tute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments.

In the first place, then, let us examine into the decisions of the courts of New York upon this subject. In the earliest case, Warren v. Lynch, 5 Johns. R. 289, the Supreme Court of New York appear to have held that a preexisting debt was a sufficient consideration to entitle a bona fide holder without notice to recover the amount of a note indorsed to him, which might not, as between the original parties, be valid. The same doctrine was affirmed by Mr. Chancellor Kent in Bay v. Coddington, 5 Johns. Ch. Rep. 54. Upon that occasion he said, that negotiable paper can be assigned or transferred by an agent or factor, or by any other person, fraudulently, so as to bind the true owner as against the holder, provided it be taken in the usual course of trade, and for a

1

fair and valuable consideration, without notice | That section provides that the laws of the of the fraud. But he added, that the holders several States, except where the Constitution, in that case were not entitled to the benefit of treaties, or statutes of the United States shall the rule, because it was not negotiated to otherwise require or provide, shall be regarded 17] them in the usual course of business or as rules of decision in trials at common law in trade, nor in payment of any antecedent and the courts of the United States, in cases where existing debt, nor for cash, or property advanced, they apply." In order to maintain the argudebt created, or responsibility incurred, on the ment, it is essential, therefore, to hold, that the strength and credit of the notes; thus directly word "laws," in this section, includes within affirming that a pre-existing debt was a fair and the scope of its meaning the decisions of the valuable consideration within the protection of local tribunals. In the ordinary use of language the general rule. And he has since affirmed the it will hardly be contended that the decisions same doctrine, upon a full review of it, in his of courts constitute laws. They are, at most, Commentaries (3 Kent. Com. sect. 44, p. 81). only evidence of what the laws are, and are not The decision in the case of Bay v. Coddington of themselves laws. They are often re-examwas afterwards affirmed in the Court of Errors ined, reversed, and qualified by the courts them(20 Johns. R. 637), and the general reasoning selves, whenever they are found to be either of the Chancellor was fully sustained. There defective or ill-founded, or otherwise incorwere indeed peculiar circumstances in that case, rect. The laws of a State are more usually which the court seemed to have considered as understood to mean the rules and enactments entitling it to be treated as an exception to the promulgated by the legislative authority thereof, general rule, upon the ground, either because or long established local customs having the force the receipt of the notes was under suspicious of laws. In all the various cases, which have circumstances, the transfer having been made hitherto come before us for decision, this court after the known insolvency of the indorser, or have uniformly supposed that the true interbecause the holder had received it as a mere pretation of the 34th section limited its applicasecurity for contingent responsibilities, with tion to State laws strictly local, that is to say, which the holders had not then become charged. to the positive statutes of the State, and the There was, however, a considerable diversity of construction thereof adopted by the local triopinion among the members of the court upon bunals, and to rights and titles to things having that occasion, several of them holding that the a permanent locality, such as the rights and decree ought to be reversed, others affirming titles to real estate, and other matters immovthat a pre-existing debt was a valuable consid-able and intraterritorial in their nature and eration, sufficient to protect the holders, and character. It never has been supposed by us, others again insisting that a pre-existent debt that the section did apply, or was designed to was not sufficient. From that period, however, apply, to questions of a more general nature, for a series of years, it seems to have been held not at all dependent upon local statutes or by the Supreme Court of the State, that a pre-local usages of a fixed and permanent [*19 existing debt was not a sufficient consideration operation, as, for example, to the construction to shut out the equities of the original parties of ordinary contracts or other written instruin favor of the holders. But no case to that effect has ever been decided in the Court of Errors. The cases cited at the bar, and especially Roosa v. Brotherson, 10 Wend. R. 85; The Ontario Bank v. Worthington, 12 Wend. R. 593; and Payne v. Cutler, 13 Wend. R. 605, are directly in point. But the more recent cases, The Bank of Salina v. Babcock, 21 Wend. R. 490; and The Bank of Sandusky v. Scoville, 24 Wend. R. 115, have greatly shaken, if they have not entirely overthrown those decisions, and seem to have brought back the doctrine to that promulgated in the earliest rases. So that, to say the least of it, it admits of serious doubt, whether any doctrine upon this question can at the present time be treated as 18*] finally established; and it is certain that the Court of Errors have not pronounced any positive opinion upon it.

ments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in hold. ing, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals But, admitting the doctrine to be fully settled upon such subjects are entitled to, and will rein New York, it remains to be considered, ceive, the most deliberate attention and respect whether it is obligatory upon this court, if it of this court; but they cannot furnish positive differs from the principles established in the rules, or conclusive authority, by which our general commercial law. It is observable that own judgments are to be bound up and gov. the courts of New York do not found their de-erned. The law respecting negotiable instrucisions upon this point upon any local statute, ments may be truly declared in the language of or positive, fixed, or ancient local usage; but Cicero, adopted by Lord Mansfield in Luke v. they deduce the doctrine from the general prin- Lyde, 2 Burr. R. 883, 887, to be in a great ciples of commercial law. It is, however, con measure, not the law of a single country only, tended, that the 34th section of the Judiciary but of the commercial world. Non erit alia Act of 1789 (ch. 20) furnishes a rule obligatory lex Romæ, alia Athenis, alia nunc, alia posthac, upon this court to follow the decisions of the sed et apud omnes gentes, et omni tempore, una State tribunals, in all cases to which they apply. 'eademque lex obtinebit.

It becomes necessary for us, therefore, upon | *the one now before us; for the bill of ex- [*21 the present occasion, to express our own opin- change there drawn in discharge of a pre-exion of the true result of the commercial law up-isting debt, was held to bind the party as ac on the question now before us. And we have ceptor, upon a mere promise made by him to no hesitation in saying, that a pre-existing debt accept before the bill was actually drawn. does constitute a valuable consideration in the Upon that occasion Lord Mansfield, likening sense of the general rule already stated, as ap- the case to that of a letter of credit, said, that plicable to negotiable instruments. Assuming a letter of credit may be given for money al it to be true (which, however, may well admit ready advanced, as well as for money to be ad of some doubt from the generality of the lan-vanced in future; and the whole court held the guage), that the holder of a negotiable instru- plaintiff entitled to recover. From that period ment is unaffected with the equities between downward there is not a single case to be found the antecedent parties, of which he has no no- in England in which it has ever been held by tice, only where he receives it in the usual the court that a pre-existing debt was not course of trade and business for a valuable con- valuable consideration, sufficient to protect the sideration, before it becomes due, we are pre- holder, within the meaning of the general rule. pared to say that receiving it in payment of, or although incidental dicta have been sometimes 20*] as security for a pre-existing debt, "is ac- relied on to establish the contrary, such as the cording to the known usual course of trade and dictum of Lord Chief Justice Abbott in Smith business. And why upon principle should not v. De Witt, 6 Dowl. & Ryland, 120; and De l a pre-existing debt be deemed such a valuable Chaumette v. The Bank of England, 9 Barn. consideration? It is for the benefit and con- Crest. 209, where, however, the decision venience of the commercial world to give as turned upon very different considerations. wide an extent as practicable to the credit and Mr. Justice Bayley, in his valuable work on circulation of negotiable paper, that it may bills of exchange and promissory notes, lays pass not only as security for new purchases and down the rule in the most general terms. "The advances, made upon the transfer thereof, but want of consideration," says he, "in toto or in also in payment of and as security for pre-ex- part, cannot be insisted on, if the plaintiff or isting debts. The creditor is thereby enabled any intermediate party between him and the to realize or to secure his debt, and thus may defendant took the bill or note bona fide and safely give a prolonged credit, or forbear from upon a valid consideration." Bayley on Bills taking any legal steps to enforce his rights. p. 499, 500, 5th London edition, 1830. It i The debtor also has the advantage of making observable that he here uses the words "vali his negotiable securities of equivalent value to consideration," obviously intending to mak cash. But establish the opposite conclusion, the distinction, that it is not intended to apply that negotiable paper cannot be applied in pay- solely to cases where a present consideration ment of, or as security for pre-existing debts, for advances of money on goods or otherwise without letting in all the equities between the takes place at the time of the transfer and upon original and antecedent parties, and the value the credit thereof. And in this he is fully and circulation of such securities must be es- borne out by the authorities. They go farther, sentially diminished, and the debtor driven to and establish that a transfer as security for the embarrassment of making a sale thereof, past, and even for future responsibilities, will, often at a ruinous discount, to some third per- for this purpose, be a sufficient, valid, and valson, and then by circuity to apply the proceeds uable consideration. Thus, in the case of to the payment of his debts. What, indeed, Bosanquet v. Dudman, 1 Starkie, R. 1, it was upon such a doctrine, would become of that held by Lord Ellenborough, that if a banker large class of cases where new notes are given be under acceptances to an amount beyond the by the same or by other parties, by way of re- cash balance in his hands, every bill he holds newal or security to banks, in lieu of old se- of that customer's, bona fide, he is to be considcurities discounted by them, which have ar- ered as holding for value; and it makes no difrived at maturity? Probably more than one ference, though he hold other collateral securihalf of all bank transactions in our country, as ties more than sufficient to cover the execess of well as those of other countries, are of this na- his acceptances. *The same doctrine [*23 ture. The doctrine would strike a fatal blow was affirmed by Lord Eldon in Ex-parte Bloxat all discounts of negotiable securities for pre-ham, 8 Ves. 531, as equally applicable to past existing debts. and to future acceptances. The subsequent This question has been several times before cases of Heywood v. Watson, 4 Bing. R. 496; this court, and it has been uniformly held that it makes no difference whatsoever as to the rights of the holder, whether the debt for which the negotiable instrument is transferred to him is a pre-existing debt, or is contracted at the time of the transfer. In each case he equally gives credit to the instrument. The cases of Coolidge v. Payson, 2 Wheaton R. 66, 70, 73, and Townsley v. Sumrall, 2 Peters, R. 170, 182, are directly in point.

and Bramah v. Roberts, 1 Bing. New Ca. 469; and Percival v. Frampton, 2 Cromp Mees. & Rose, 180, are to the same effect. They directly establish that a bona fide holder, taking a negotiable note in payment of or as security for a pre-existing debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties. And these are the latest decisions which our researches have enabled us to ascer In England the same doctrine has been uni-tain to have been made in the English courts formly acted upon. As long ago as the case upon this subject.

of Pillans and Rose v. Van Meirop and Hop- In the American courts, so far as we have kins, 3 Burr. 1664, the very point was made been able to trace the decisions, the same docand the objection was overruled. That, in-trine seems generally, but not universally, to deed, was a case of far more stringency than prevail. In Brush v. Scribner, 11 Conn. R.

388, the Supreme Court of Connecticut, after an elaborate review of the English and New York adjudications, held, upon general princi ples of commercial law, that a pre-existing debt was a valuable consideration, sufficient to convey a valid title to a bona fide holder against all the antecedent parties to a negotiable note. There is no reason to doubt that the same rule has been adopted and constantly adhered to in Massachusetts; and certainly there is no trace to be found to the contrary. In truth, in the silence of any adjudications upon the subject, in a case of such frequent and almost daily occurrence in the commercial States, it may fairly be presumed that whatever constitutes a valid and valuable consideration, in other cases of contract, to support titles of the most solemn nature, is held, a fortiori, to be sufficient in cases of negotiable instruments, as indispensable to the security of holders, and the facility and safety of their circulation. Be this as it may, we entertain no doubt that a bona fide holder for a pre-existing debt of a negotiable instrument is not affected by any equities between the antecedent parties, where he has received

the United States for the Southern District of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court that the defendant was not, under the facts stated, entitled to the same defense to the action as if the suit was between the original parties to the bill; that is to say, the said Norton, or the said Norton and Keith and the defendant; and that the evidence offered [*24 in defense and objected to, was not admissible as against the plaintiff in this action. Whereupon it is now here ordered and adjudged by this court, that an answer in the negative be certified to the said Circuit Court.

the same before it became due, without notice RICHARD J. WATKINS, Plaintiff in [*25

of any such equities. We are all, therefore, of opinion that the question on this point, propounded by the Circuit Court for our consid

Error,

V.

eration, ought to be answered in the negative; THE LESSEE OF OLIVER HOLMAN et al. and we shall accordingly direct it so to be certified to the Circuit Court.

23*] Mr. Justice Catron said:

Upon the point of difference between the judges below, I concur that the extinguishment of a debt, and the giving a post consideration, such as the record presents, will protect the purchaser and assignee of a negotiable note from the infirmity affecting the instrument before it was negotiated. But I am unwilling to sanction the introduction into the opinion of this court a doctrine aside from the case made by the record, or argued by the counsel, assuming to maintain that a negotiable note or bill pledged as collateral security for a previous debt, is taken by the creditor in the due course of trade, and that he stands on the foot of him who purchases in the market for money, or takes the instrument in extinguishment of a previous debt. State courts of high authority on commercial questions have held otherwise; and that they will yield to a mere expression of opinion of this court, or change their course of decision in conformity to the recent English cases referred to in the principal opinion, is improbable; whereas, if the question was permitted to rest until it fairly arose, the decision of it either way by this court, probably, would, and I think ought to settle it. As such a result is not to be expected from the opinion in this cause, I am unwilling to embarrass myself with so much of it as treats of negotiable instruments taken as a pledge. I never heard this question spoken of as belonging to the case, until the principal opinion was presented last evening; and therefore I am not prepared to give any opinion, even was it called for by the record.

This cause came on to be heard on the transcript of the record from the Circuit Court of

Title to water-lot in Mobile-volume of State papers as evidence-deed executed under decree of court of another State-act of Legis. lature subjecting lands of deceased to payment of debts, to exclusion of personaltyexecutive, legislative and judicial powers, and their limitations.

city of Mobile, Alabama. Ejectment to recover possession of a lot in the The defendants, in the Circuit Court, claimed title to the land under Lucy Landry, who was the devisee of one Geronio; who having been in possession of the lot at the corner of St. Francis and royal streets, occupied it until his death. On the arrival of Lucy Landry at age, she occupied the lot as her own property; and in 1818 she sold and conveyed it by deed to certain persons, stating the eastern boundary in the deed to be the Mobile River. These persons on the same day conveyed the premises to Oliver Holman, who entered on it and improved it, by erecting houses and a wharf upon it, and continued to occupy it as a merchant in co-partnership with one Charles Brown, who lived in Boston, until December, 1822, when he died, leaving, as his heirs, the lessors of the plaintiff. The possession of Lucy Landry of the lot commenced in 1800, and extended on Royal street, and on the east, followed the high waterinundation, though in many places the water ran The land was not subject to across it. Until the improvements made by Holman, the lot was not susceptible of occupancy, There was a ridge of high land formed of shells and artificial deposits, to the east of which, to the river. the lot was situated; and the ridge was protected by the Spanish authorities, no person being permitted by them to improve on the ground, or to remove the earth. It was called "The King's highway," or landing-place. Questions as to the title of the proprietors of the adjacent lots above Water street to the lots extending to the river, prevailed until

mark on the river.

NOTE. As to estoppel by recital in deed, will, or other instrument, see note to Carver v. Jackson, Pet. 1.

When vendee is estopped from disputing the title of his vendor.

Where parties go into possession of premises,

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