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isfaction was not entered upon the record. The sale of the eleven lots, as its dividend, the sum payment was not stated to be for the use of of $2,428.62. the Bank of the United States; and writs of And the question in this controversy is scire facias have been brought to revive the whether the proceeds of the sale of the eleven judgments.

lots shall be paid to the creditors named in the It having been discovered that the trust deed deed of trust of the 9th April, 1824, to the of the 9th April, 1824, did not include all the Bank of the United States, on their (*125 property of George Peter within the district, judgment, and on the other judgments of May, on the 1st October, 1829, he executed another | 1824, under which the lien is set up; or to the deed of trust to Thomas Peter, for ten lots in creditors named the trust deeds of these lots the city of Washington, which were required of 1829 and 1830. to be sold, and the proceeds applied in paying Although the bill in this case in its specific certain judgments against George Peter as prayer does not extend beyond an application drawer, and Thomas Peter as indorser. One of this fund under the first deed of trust, yet of the judgments specified was obtained by the there are certain agreements and admissions on Bank of the United States. And on 7th May, the record which authorize the court to make 1830, another deed of trust was executed by a final decision in the case. George Peter to Thomas Peter, including the It seems that a satisfaction has not been en. above ten lots and one other lot in the city of tered on the judgments of the Union Bank, al. Washington. This deed

designed to though they have been paid in full. The entry remedy some defect or informality in the first that this payment was made for the use of the deed for the ten lots, and to convey one other Bank of the United States can have no effect lot; the same judgments are recited as in the favorable to the Bank of the present question. first deed, and the same trust declared. Under the trust deed, the Bank of the United

These eleven lots were sold by Richard States had but a common interest with the othSmith, in October, 1829, and May, 1830, for er creditors named in discharging or controlling $5,280.70.

the lien of these judgments. And it is on the In 1834 Thomas Peter died, and this pro- discharge of this incumbrance by the trustee ceeding is carried on by his executors, who, out of the trust fund, that he sets up the right with George Peter, filed their bill stating the in equity, in behalf of himself and the creditabove facts, and praying that Richard Smith ors named in the deed, to be subrogated to all and the Bank of the United States be decreed the rights of the Union Bank as plaintiffs in to pay over the proceeds of the sale of the the judgments. eleven lots in their possession to the creditors It is a well settled principle in equity, where named in the trust" deed of 9th April, 1824. a judgment creditor, who is compelled to pay This application is made on the ground that as off prior incumbrances on land to obtain the the judgments of the Union Bank were a lien benefit of his judgment, may by assignment, upon the eleven lots, and were paid out of the secure to himself the rights of the incumbran. trust funds, the trustee, in behalf of the cred. And the same rule applies where a junior itors and himself, has a right, in equity, to the mortgagee, to save his lien, is obliged to satisfy proceeds of the sale of these lots, under the lien prior mortgages on the same estate. He stands of the judgments.

as the assignee of such mortgages, and may This claim is resisted by the Bank of the claim all the benefits under the lien that could United States, on the ground that the judg. have been claimed by his assignor. ment obtained by the bank for $5,000, in May, But the effect of this principle is controlled 1824, long before the execution of the deed of in the present case by the subsequent acts of trust for these lots, constituted a lien upon the parties. them, after the discharge of the judgments of If the lien of the judgments of the Union the Union Bank. There were other judg. Bank had been unconditionally extinguished, ments against George Peter, rendered in May, the lien of the judgment of the Bank of the 1824, which were not provided for in the trust United States, and the other judgments of the deed of April, 1824, and which claim a propor- same date, would have attached to the eleven tionate interest with the Bank of the United lots; but this effect has also been controlled by States, in the lien on the eleven lots. This the acts of the parties. claim is not resisted by the Bank of the United The judgments of the Union Bank were not States, which claims out of the proceeds of the paid until January, 1830. So that prior to this Auken, 3 Barb. 534 ; Fell v. Brown, 2 Bro. C. C. This is a right which the parties in possession 276; Stonehewer v. Thompson, 2 Atk. 440 ; 8 P. can set up and make available by way of defense Wms. 831 ; 4 Kent's Com. 162, marg. page : 2 Story in an action brought against them. Ibid. Eq. Jur. sec. 1023; Willard Eq. Jur. 447; Burnet The plaintiff in an action for the foreclosure of a V. Dennison, 6 Johns. Ch. 35; Rosevelt v. Bank of mortgage, on the payment or tender to bim of his Niagara, Hopk. 579: Averill y. Taylor, 4 Seld. 44. mortgage debts and costs, can make no equitable or

One who has a Junior llen by mortgage or judg. effectual resistance to a claim for subrogation, og ment is entitled, upon paying the prior mortgage, to the part of anyone who has an interest in the prop. be subrogated to the right of the mortgagee, witberty, which can only be saved by, or which would out any assignment. Ellsworth v. Lockwood, 42 beserlously endangered without, the proposed N. Y. 89.

substitution. McLean v. Tompkins, 18 Abb. Pr. N. Where parties, while in possession of premises Y. 24. under a contract to purchase, and by virtue of a A junior mortgagee, who, by arrangement with deed of the same, purchase overdue and unpaid the owner of the premises, pays off the prior inmortgages of the vendors, upon the premises, they cumbrance, is entitled to be subrogated 'thereto. become, by such purchase, substituted in place of Patterson v. Birdsall, 6 Hun. 632. the mortgagees, and are entitled, by subrogation, to A second mortgagee has the right to redeem . all the rights of mortgagees in possession. Madi. prlor mortgage, and to be subrogated to all secartson Avenue Baptist Church v. Baptist Church in ties held by the prior incumbrancer. Dulgs 1 Oliver Street, 2 Robt. 612.

Parshall, 7 Hun, 522.

ces.

time, on no principle could the lien of these have postponed either the lien of the Union judgments be held to be extinguished. And Bank or the rights under the deed of trust, in before this time the trust deed was executed. behalf of the judgment of the Bank of the

This deed was executed on the 1st October, United States; but would have directed that the 1829, and it contains the following recital: eleven lots should be sold under the judgments "Whereas, the said George Peter is indebted of the Union Bank. to the president, directors and company of the This would have been the correct rule under Bank of the United States; to the president these conflicting rights; but the case turns on and directors of the Union Bank of Georgetown, the deeds of trust of 1829 and 1830, which con. and to the president and directors of the Farm veyed the title, subject only to the prior lien of ers' and Mechanics' Bank of Georgetown, in the judgments of the Union Bank. And this divers large sums of money, for which the said was done with the consent of the agent of the George Peter gave his several promissory notes, Bank of the United States. We think this conpayable to the said Thomas Peter, and by him sent, as shown in the deeds and the sale of the indorsed to the said banks, upon which notes eleven lots, connected with the facts of the judgments have been obtained,” etc. And the case, goes to establish the trust deeds; and that lots are conveyed to Thomas Peter in trust for the proceeds of the sale of these lots must be the payment of the above judgments, and were paid over on the judgments specified in the sold in October, 1829, and May, 1830, by Rich. deeds according to their respective priorities. ard Smith, agent for the trustees and the cred- *As the decree of the Circuit Court is [*127 126*] itors named in the *deed. He was cash not in accordance with this view of the case, it ier of the Branch Bank of the United States at must be reversed, and the case sent down for Washington, and represented the interests of further proceedings. the bank in the proceeding.

This cause came on to be heard on the tran. From these facts, it appears that before the script of the record from the Circuit Court of judgments of the Union Bank were satisfied, the United States for the District of Columbia, and consequently before there was any pre- bolden in and for the County of Washington, tense that the lien of these judgments on these and was argued by counsel; on consideration lots was extinguished, with the consent and ap- whereof, it is adjudged and decreed by this probation of aïl the parties interested, the deed court that the decree of the said Circuit Court of the 1st October, 1829, was executed. That in this cause be, and the same is hereby rethis arrangement was made with the approba. versed, and this cause be remanded to the said tion of the Bank of the United States is clear Circuit Court for further proceedings to be had from the face of the deed, and the agency of therein in conformity to the opinion of this Smith in selling the property.

court. Except by virtue of the trust deed, Smith had no right to sell the property, and acting as he did for the creditors named in the deed, •CHARLES KING, Appellant, (*128 among which the Bank of the United States was prominent, it is too late for the bank, after JOSIAS THOMPSON et al., Heirs-at-law of the sale, to disavow his agency.

George King, Deceased, Appellees. The contingent lien of the bank on the elev. en lots, by virtue of its judgment, in May, 1824, Alleged contract to convey realty-property does not seem to have been considered by the

sold to repay money expended for benefit of bank of the trustee, when the trust deed was

alleged vendee. executed, as of any value. It depended entirely on the unconditional extinguishment of the A bill was Aled claiming a specific performance lien under the judgments of the Union Bank of an alleged contract to convey a house and lot in

It is contended that as the judgments of the plainant, the complainant having expended a large Union Bank were a lien upon all the real es- sum of money in improving the property, in the tate of George Peter in the district, that the expectation that it would be conveyed as 'required court would have directed executions on these clent evidence

of an agreement to convey the prop. judgments to be levied on the property of Peerty was given, ordered that the property should ter, other than the eleven lots; so as to have be sold, and out of the proceeds that the advances left them to be sold under the judgment of the property sold for a sum far less than the amount Bank of the United States. And that the same expended. Held, that the balance unpaid after the rule should now prevail.

sale was not a debt due by the estate of the father

of the wife, and could not be claimed of his repre The answer to this is that before the judg. sentatives. ment of the Bank of the United States was rendered, the first deed of trust was executed, O Neal pleates of the District

of Columbia, for which embraced all the property of Peter in the district except the eleven lots. That this the County of Washington. deed was valid, and that the rule would have In December, 1822, the appellant filed in the been applied as between the lien of the Union Circuit Court a creditor's bill in the usual form Bank and the grantee of the first deed of trust, against the appellees, praying for the sale of but not as to subsequent liens.

the real estate of George King, deceased, in aid Here are the judgment lien and the trust of his personal estate. It appeared that George deed, covering the same property, except the King had died intestate and insolvent in 1820, eleven lots, which are covered by the judg- and with the assent of the defendants a decree ments, but not by the deed. The judgment of of sale of his real estate was made in January, the Bank of the United States created no lien. 1823. Under this decree sales were made, roUnder such circumstances, the court could not ported, and confirmed; and in March, 1831,

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e final sale of all the real estate was made ex cuit Court were well taken, and ought to have cept a house and lot on Civil Alley in George been allowed. He cites, in support of the lst town, which sale, on the claim of Josias exception taken below, 9 Peters's Rep. 204; Thompson and wife, was set aside in April, Briscoe v. King, Cro. Jac. 281, and in support 1831. As the sales were made, audits of the of 3d exception. Strike v. M'Donald and accounts of the estate and the claims were made Son, 2 Harr. & Gill. 181; Harwood v. Rawling's from March, 1827, to March, 1836. On the Heirs, 4 Harr. & Johns. 126; Duvall v. Green, last report of the auditors coming before the Ib. 270. court, Alexander Caldwell, administrator of As to the first point. The parties in this case Josias Thompson, who had become deceased, are different from those before this court in the exhibited to the Circuit Court a claim against case in 9 Peters. These are creditors of George George King for a dividend out of the assets of King; and as that was a proceeding for a spe. his estate, and on his motion the auditor's re- cific performance of an alleged contract with port was recommitted.

George King, to which these creditors could The record made the case of George King's not be parties, the decree of the court could heirs et al., appellants, v. Josias Thompson et not be an estoppel. ux, 9 Peters, 204, a part of this case. Josias In that case no claim of indebtedness was Thompson and wife, in the case referred to, raised or presented against the estate of George had claimed of the heirs of George King that King. It was commenced and prosecuted on the house and lot on Civil Alley in Georgetown the allegation that the property on which the should be conveyed to them, alleging that money had been expended had been promised an agreement to that effect had been made to the wife of Josias Thompson, the daughter with them in his lifetime by George King, of George King, and its sole purpose was to obJosias Thompson having married the daughter tain a conveyance of the property. of George King, and in consideration of this

There was no contract made with George agreement Josias Thompson had laid out four King, upon which the money was expended by thousand dollars in buildings and improvements Josias Thompson, for the benefit of George on the lot. The court not being satisfied upon King, and this court will not see in the case the evidence that a decree for the conveyance anything to found a contract of this nature. of the property should be made, ordered that the whole object of the proceeding in the case a sale of the property should be made, and that in 9 Peters has been obtained. The complain: the proceeds should be first applied to repay ant in that case *has drained the whole [*130 to Josias Thompson the sum of four thousand of the proceeds of the sale of the house and lot. dollars laid out on the same, and that the bal The claim of Josias Thompson was ance should be paid over for the benefit of the plete, such as it was at the death of George creditors of George King.

King in 1820, and until 1837 no assertion is Under this decree the property was sold, and made by Josias Thompson or by anyone for 129*] it produced the sum of eight hundred him that the estate of George King was indebtand twenty-seven dollars, leaving of the sum ed to him. In his lifetime, Josias Thompson expended by Josias Thompson, three thousand made no claim, it was left to his administrator one hundred and seventy-three dollars, un to present and assert it. It is at an end, by paid.

force of the statute of limitations. In April, 1837, the administrator of Josias A mortgage does not imply a personal obligaThompson claimed from the estate of George tion for the payment of any portion of the debt, King à dividend on the sum of four thousand which the property mortgaged may not prodollars, the amount laid out on the house and duce by a sale. The saving in a mortgage is lot, being two thousand six hundred and for the benefit of the mortgageor. Briscoe v. twenty-six dollars, less the sum of eight hun. King, Cro. Jac. 281. dred and twenty-seven dollars, the proceeds of Mr. Coxe, for the appellees, contended that the house and lot.

the decree of the Circuit Court was right. It This claim was made on the allegation that was founded on the report of the auditor, who Josias Thompson was a creditor of George it is to be presumed had full evidence of the King to the amount of four thousand dollars, facts on which the report is founded. by the expenditure of that sum on the house The lien on the house and lot for advances and lot, and that he was entitled to come in made by Josias Thompson was established by and have, on that amount, an equal dividend the decree of the court in the case in 9 Peters with the other creditors of the estate of George The balance, beyond what the house and lot King, deducting the proceeds of the property would produce by a sale, was a debt due by the in Georgetown.

estate of George King. The claim of the adThe Circuit court made a decree allowing to ministrator of Josias Thompson is in full acthe administrator of Josias Thompson the cordance with the principles established by this amount claimed by him, and the defendants court in its decision in Ò Peters. prosecuted this appeal.

The case was argued by Mr. Clement Cox for Mr. Justice Catron delivered the opinion of the appellant, and by Mr. Coxe for the appel. the court: lees.

In 1812 Thompson married the daughter of Mr. Cox, for the appellant, insisted:

King, who, being a man of considerable estate, 1. That the decree in 9 Peters's Rep. 203, offered to give Thompson a house and lot in does not operate as an estoppel of the excep: Georgetown, then in a dilapidated state, if tions, the issues in this case being different. 1 Thompson would repair the premises so as to Starkie on Evidence, 202; Collinson v. Owens, make them a comfortable residence, King rey. 6 Gill & Johns. 4, 11.

ing he intended the property for his daughter, 2. That otherwise the exceptions in the Cir-I the wife of Thompson.

Thompson accepted the offer, went into pos. , that Thompson's administrator should come in session, and expended in repairs and improve for an equal dividend with the general creditors. ments, four thousand dollars.

From this order the creditors appealed. About 1816, Thompson claimed to have the Thompson, by his bill to subject the house and property conveyed to him by King, who re. lot, claimed a priority of lien, and had it alfused, but offered to vest the title in trust for lowed to him, in exclusion of the general cred. Thompson's wife. Thompson made several alitors; he proceeded against the thing, and did ternative propositions, one amongst others that not set up any personal demand extending bethe house and lot should be valued as of the yond the lien, against the other estate of King, date when it was put into his possession, and and we are clearly of opinion none exists. And that he would pay the amount over to King therefore order that so much of the proceeding and take a title; which proposition the latter in the Circuit Court, as allowed the administraaccepted, or offered to convey a part of the lot, tor of Thompson to come in with the general including the house, to Thompson, and another creditors of King to receive a dividend founded part to Thompson's wife. Under these circum- on said claim, be reversed, and that the cause stances, Thompson continued to occupy the be remanded for further proceedings. premises for a time, and afterwards removed This cause came on to be heard on the tranfrom, and rented them; King setting up no script of the record from the Circuit Court of claim to have the property returned to him. the United States for the District of Columbia,

In 1820 he died, and the title descended on *holden in and for the County of Wash- [*132 his heirs. King, at his death, was largely in- ington, and was argued by counsel; on con debted, say $36,000, and much over the means sideration whereof, it is adjudged and decreed of payment; his creditors filed a bill to have by this court, that so much of the decree of the 131'j satisfaction *of their demands out of said Circuit Court in this cause as allowed the the real as well as personal estate, and the administrator of Thompson to come in with the trustee appointed by the Circuit Court to sell general creditors of King, to receive a dividend the property amongst other lands, sold that founded on his claim, be, and the same is claimed by Thompson. The latter filed his bill hereby reversed, with costs; and that this cause to avoid the sale, and for a specific performance be, and the same is hereby remanded to the said against King's heirs, the trustees of the cred Circuit Court for further proceedings to be had itors, etc., the record in which clause, as re. therein in conformity to the opinion of this ported in 9 Peters's Reports, is, by the excep court. tions and an agreement, made a part of this proceeding.

The creditors denied the existence of the title set up by Thompson, claiming the house and

*THE UNITED STATES, Appellant, (*183 lot as subject to King's debts, and went to is.

V. sue. The court below decreed specific perform THE HEIRS OF F. M. ARREDONDO et al., ance, from which the defendants appealed to this

Appellees. court, where the decree below was reversed. But Thompson having an alternative prayer in Special land grant in East Florida deficiency. bis bill, claiming priority of the general creditors of King, in the form of a lien on the prop A concession of thirty-eight thousand 'acres of erty to the value of the improvements he had land, was made in 1817 by the Governor of East put upon it, this court held that although there services to the crown of Spain. The petition to the was not sufficient evidence to authorize a decree governor, asking for the grant, described the situafor title, still Thompson had, by the rules of Elon of the land; and asks, as the survey could not a court of equity, a lien for the money expend. appointed by the government having other occued on the improvements; and the cause was re- pations could not attend, that the issuing of the manded with a mandate that the property could be obtained but that in the meantime the should be advertised and sold, and the proceeds decree of the governor on the petition should serve of the sale be applied, first, to the satisfaction the petitioner as the title. To this application the of the money expended by Thompson in making dering a concession in conformity with the peti

assent of the governor was given, by a decree or. the improvements, "and the balance, if any, to tlon. No survey was made under the concession, be paid over for the benefit of the creditors of wbtle Florida remained under the dominion of King."

Spain, or at any time after the cession of the terri

tory to the United States. The court held tbat The property was accordingly, sold, and want of a survey does not interfere with the title brought little more than $800, leaving upwards of a grantee. The land granted must be taken as of $3,000 unsatisfied.

near as may be to place described in the petition,

and cannot be taken elsewhere ; and if it cannot be The trustee of the creditors of King's estate, found there, the grantee has no claim to an equiv: from time to time, made various sales and re- alent; and if it shall be found to interfere with ports; and at April Term, 1837, reported that previous grants to third persons, the concession will Alexander Caldwell, the administrator of the rights of third persons and an equivalent for Thompson (then deceased), had presented as a such diminution cannot be surveyed elsewhere. debt due from the estate the balanse not re

The acts of Congress for ascertaining claims' and

titles to lands in Florida, whilst they recognize patfunded to Thompson by the sale of the house ents, grants, concessions, or orders of survey, as and lot. The other creditors, resisted the claim evidence of title when lawfully made, do not per. as forming no demand on the estate, and in-mit, in case of a deficiency in the quantity from any

cause whatever, the survey to be extended on other sisted Thompson's remedy extended only to the land. property improved and fixed with the lien, by cuit Court overruled the exception, and adjudged Florida

o nomead from the Superior Court of East

This case was submitted to the court by Mr. I was asked for, and as it was granted, and can: Grundy, the Attorney-General of the United not be taken elsewhere. If it cannot be found States.

there, the appellees have no claim to an equiva

lent. Or if, upon the survey, it shall be found Mr. Justice Wayne delivered the opinion of to interfere with previous grants to third par. the court:

ties, the concession will be lessened in quantity This is an appeal from the Superior Court of according to the extent of the rights of third East Florida, which confirmed the claim of the parties, and an equivalent for such diminution appellees to a cession or grant of land, made cannot be surveyed elsewhere. Such are the by the Governor of Florida to Fernando de la terms of the concession, that the land is to be Maza Arredondo.

surveyed “in the place where the petitioner The concession was made on the 24th March, designates, without prejudice to a third party." 1817, for thirty-eight thousand acres of land, in It gives no right to an equivalent or another loabsolute property, without prejudice to a third cation, if it cannot be found at or near the place party, situated on the two banks of a stream designated. An equivalent is not secured by which enters the Suwanee River, called Alliga- the concession, in terms, nor is it by the custor Creek, beginning at about seven miles west toms or usages of Spain, nor by any law or or. of an Indian town called Alligatortown, situa dinance of Spain. And it is proper here to reted northwestwardly about forty miles distant mark that the acts of Congress for ascertain. from Payrestown, and about eighty miles from ing claims and titles to land in Florida, whilst Buena Vesta, which parts of the country are they recognize patents, grants, concessions, or known under the name of Alachua. In the orders of survey, as evidence of title when law. petition for this concession, the petitioner asks, fully made, do not permit, in case of a deficienin consideration that the situation and then cy in the quantity from any cause whatever, state of the province did not permit the survey the survey to be extended on other lands. But and demarcation of the tract" to be made, and this concession calls for a natural object, a also the survey could not be made for want of creek, and is designated as beginning on the a surveyor-the surveyor appointed by the gov. creek, about seven miles west of an Indian ernment having other occupations, which pre- town called Alligatortown. A survey may then vented him from repairing to that part of the be made so as to give the appellees the benefit province--he asks the governor to suspend the of the concession, according to the description issuing of the title to the property until the in the petition, supposing that Alligator plot of the said tract could be obtained; but in *Creek exists, and that Alligatortown 1:35 the mean time that the grant which the govern can be found; for, by running a line due west 184') or might be pleased *to give him by his from the centre of the town until it strikes the decree should serve him as the title thereto; to creek, then extending that line west for a base which the governor responds by declaring that line of the survey, making the centre of the the titles corresponding to the concession will creek equidistant from its extremities, and then be issued to the petitioner as soon as he shall running down the creek on both sides of it, topresent the plot made by the surveyor; and in wards the Suwanee, without regard to the the mean time that his decree shall be "an windings of the creek, being cut by the down. equivalent thereof in all its parts; of which a ward lines; the concession may be described by certificate shall be given to the petitioners, au survey, so as to answer the description of being thenticated in due form, in order that the peti. on the two banks of the stream or creek. Or, tioner may prove said grant, and enjoy the said in the event of no such creek existing within lands, and dispose of them as he sees fit.” The or at the distance of seven miles from Alliga. authenticity of the petition and concession is tortown, or at a reasonable distance over seven proved by such testimony as this court has al. miles to the west of it; then, by beginning the ways deemed sufficient for such purpose. It survey seven miles west of the town, making a appears, also, by documents in the record, line due west the base of the survey, and runwhich are mentioned in the appellee's petition ning from its extremities towards the Suwanee, to the court for the confirmation of this con or in any other direction; if it shall be found by cession or grant, that after the concession was running them towards the Suwanee the rights made, the grantee, for a full and valuable con of third parties would be interfered with, then sideration, sold and conveyed this tract of land, the survey of thirty-eight thousand acres could and the title in fee to the same was vested in be made so as to give the appellees the benefit Moses E. Levy, one of the appellees in this of the concession, in accordance with those lib. cause, and that the said Levy did afterwards eral and equitable principles uniformly applied by indenture, grant, bargain, and sell, by way by this court in the construction of claims to of exchange for other lands, the one undivided land in Florida, granted before the Treaty with moiety or half part of said lands and its appur- Spain transferring Florida to the United States. tenances, in fee-simple, to Fernando and Jo. If, however, neither Alligator Creek can be seph de la Maza Arredondo. It does not ap- found, nor any creek to the west of Alligator: pear by the record that a survey was made of town, entering into the Suwanee, within or at this concession whilst Florida continued . seven miles distance from the town, or a rea. province of Spain, or that it has been since sur sonable distance therefrom, and if Alligator. veyed. Nor does it appear by any evidence in town cannot be found, then it is the opinion of the cause that the locality of the concession has this court that the remaining description in the been definitely ascertained.

petition of the locality of the concession is too We do not consider the want of a survey as indefinite to enable a survey to be made, and interfering with the right of the party to the that the appellees can take nothing under the land granted, but it must be taken near as may concession. We have been the more partic. be as it is described in the petition—where it I ular upon this point, that the mandate which

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