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vent law. As gauger, he had received the salary | nexed to the petition of Robert Milnor, for the allowed by law; but the services for which com- benefit of the insolvent laws of Pennsylvania, pensation was asked, were performed in addition to those of gauger, by regauging wines, which had a claim on Congress is stated; this does not become necessary by an act of Congress reducing preclude the denial of the right of the assignee. the duties charged upon them. Congress passed an. It is the assignment which gives the right, if act giving him a sum of money for those extra serv. ices.
Held, that the assignee, under the insolvent any was given. 3 Petersdorff, 486. laws, was entitled to recelve from the Treasury of The act of Congress limits the salaries of the United States, the amount so allowed.
gaugers to fifteen hundred dollars; and thus it is obvious that Milnor and Thompson had not
ed States for the County of Washington, in tion from the United States. A claim of this the District of Columbia.
king, being one for a gratuity, a benefaction The appellants, Milnor and Thompson, were, cannot be passed under the assignment. It during the years 1836 and 1837, United States must be an actual interest, not an expectancy. gaugers for the port of Philadelphia, and as *If the assignee of Milnor had any (*223 such received the full compensation allowed by right, it should have been presented to Conlaw for that period. The duties having been gress. The power of the Legislature over the rendered unusually laborious during the year, matter was complete. They have given the by the operation of the Act of July 4th, 1836, sum allowed to Robert Milnor; and the Cir. reducing the duties on wines, under which they cuit Court had no power to alter the donation. were required to regauge them, they appealed The Secretary of the Treasury rejected the to Congress for extra compensation, to the application of the assignee, and his decision amount of their full ordinary fees for these ad. was conclusive. Cited, Decatur v. Paulding, ditional services.
Secretary of the Navy, 14 Peters, 497. Their memorial to Congress was presented in Mr. Bradley, for the appellee, insisted that January, 1838; and in May, 1840, an act was the claim by the appellee, as assignee of Robpassed for their relief, by which the sum of ert Milnor, to the portion of the sum allowed "two thousand seven hundred and fifty-seven by Congress to Robert Milnor, was valid, and dollars and twenty-three cents, being the amount that the claim had passed to the assignee under of fees due to them for extra services as gaugers the assignment. The appellant claimed from in the port of Philadelphia, after the passage of Congress a compensation for extra services perthe Act of 4th July, 1836, reducing the duties formed by hin for the United States, before he on wines." George W. Metz made no claim took the benefit of the insolvent laws of Pennbefore Congress, as the assignee to Robert Mil-sylvania, and the claim was allowed. There
was a subsisting equity in favor of the petitionIn December, 1838, the appellant, Robert ers. It was such a claim as, although a suit 222*) Milnor, applied at "Philadelphia for could not be instituted for its recovery in an the benefit of the insolvent laws of Pennsyl- action by the United States against the peti. vania; and he was discharged in January, 1839, tioners, would have been matter of set-off. having executed the usual assignment for the The United States v. Tillotson, 7 Peters, 28; benefit of his creditors. The appellee, George The United States v. Ripley, 7 Peters, 26. W. Metz, was duly qualified, and became the The principle of law which may be derived sole assignee.
from these cases is, that if any one shall perAfter the Act of 1840 had passed, he applied form services at the instance or request of the at the Treasury Department, claiming the government of the United States, he is entitled amount of the sum allowed by the same to Rob- to compensation. The right to compensation ert Milnor, being one half of the whole sum is property belonging to the party who has allowed; the other portion belonging to John done the services, and as such belongs to the Thompson.
creditors of the insolvent. This application was rejected; and this suit The principles which are in question in this was instituted against the appellants. The case were settled by the court in the case of court made a decree in favor of the appellee; Comegye v. Vasse, 1 Peters, 193. and the appellant, Robert Milnor, prosecuted It was held in that case that it was immate. this appeal.
rial who presented the claim. The money recov. The case was argued by Mr. Clement Coxe for ered belonged to the assignee. the appellant, and by Mr. Bradley for the ap- Mr. Coxe denied that any legal claim existed pellee.
on the United States for compensation. The Mr. Coxe contended:
salary of the gaugers was fixed by law, and 1. That there was no purpose of Milnor to whatever else they obtained was a gratuity. make the dedication claimed; and that his pur. He cited 13 Peters, 409, as in all respects suspose, either way, is immaterial, as the insolvent taining the claims of the appellant. The delaw determines, without reference to it, what cision of the court in the case of Comegys v. shall, and what shall not be included in the as. *Vasse was given on the terms of the (*224 signment.
Spanish Treaty, which fully authorized the 2. That the insolvent, at the time of his as claim of the assignee. signment, had no such interest in the claim upon Congress as could pass by that instru. Mr. Justice Catron delivered the opinion of ment.
the court: 3. That Congress had the right to model their The question in this cause is, whether a relief at pleasure, and having granted it to Mil-claim on the United States passed by an assignnor, and not to his assignee, the latter is with ment made by Milnor, an insolvent, by force of out relief by the present suit.
an act of Pennsylvania, where the insolvent Although, in the schedule of property an- 'resided, and where the assignment took place.
The application was made to the Court of court on the ground that Emerson, Chew, and Common Pleas of Philadelphia County, 24th Lorrain, as surveyor, collector, and naval offi. December, 1838. According to the require. cer of the port of New Orleans, had no right ments of the Insolvent Act, there was pre- as captors; and that they stood on the footing sented: “A statement of all the estate, effects, of an officer who made a military seizure. and property of the petitioner, wheresoever Emerson died; and in 1831 Congress passed an situate, and of whatsoever kind.”. He says, act bestowing on his legal representatives, and “Your petitioner has no property of any kind on Chew and Lorrain, the one half of the conexcept the following claim, viz.:
demnation money. "A claim on the government of the United Hall, as a creditor of Emerson, filed his peti. States for about three thousand seven hundred tion in the Probate Court at New Orleans, and seventy-four dollars and fifty cents." against Byrne, the curator of the heirs of Em.
Assignees were appointed by the court, to erson, for the payment of his debt out of the whom the following assignment was made: moneys received under the act of Congress.
Know all men by these presents, that I, The Probate Court, and the Supreme Court of Robert Milnor, the above named petitioner, Louisiana, on appeal gave judgment for Hall; have assigned, transferred, and set over unto and on writ of error prosecuted to (*226 George W. Metz and Aaron Ross, their heirs this court, the judgment was reversed on the and assigns, all my estate, property, and effects ground that the act of Congress gave the whatsoever, to, for, and upon the uses, trusts, money to Emerson's heirs as a gratuity, beand purposes designated by the Act entitled cause of the meritorious conduct of their father. “An Act relating to insolvent debtors,” passed Say the court: "He acted under no law, nor the sixteenth day of
A. D. one thou- by virtue of any authority; his acts imposed no sand eight hundred and thirty six.
obligation, either in law or equity, on the gov. Witness my hand and seal, this eleventh day ernment. Had he been sued for a debt due to of January, A. D. 1839.
it, he could not have set up these services, Robert Milnor, (L. S.) either as an equitable or legal set-off.” They Ross refused to serve, and was discharged are declared to be like those, where an individ. by the court, leaving Metz the sole trustee. ual, by timely exertion, saves the public prop. On the same day Milnor was discharged. erty from destruction by fire; or where a pen.
On the 3d of May, 1840, Congress passed an sion is given to heirs for military services of act for the relief of Robert Milnor and John the ancestor. Thompson, ordering the Secretary of the The services performed by Milnor were at the Treasury to pay to them two thousand seven instance of the government, and necessary to hundred and fifty-seven dollars and twenty, execute the Act of 1826. But being a second 225*] three cents; "being the amount of measurement, no express law or regulation of fees equitably due to said M. and T. for extra the Treasury Department fixed the fees; and services rendered by them as gaugers at the the demand was rejected by the accounting port of Philadelphia, after the passage of the officers, because they had no discretion to go Act of the 4th of July, 1836, reducing the beyond the law, or an express regulation duties on wines, then in custom stores in said founded on it. The equity of the claim was port, and commencing with the provisions of free from doubt. The gaugers only resaid act."
ceived fees for specific services, actually per. Several petitions had been presented on the formed, and could not receive double comsubject; the first in February, 1838: the claim pensation; and in this respect the equity was was pending before Congress when the assign-Imore prominent than in M’Daniel's case, 7 ment was made, and the insolvent discharged. | Peters, 1. M’Daniel was a regular clerk in He claimed the money as then due from the Navy Department, and received a salary. the United States, and the act of Con. He was ordered by his superiors to perform, gress admits the fact. Nevertheless, the an. the extra duties of paying, (1) the navy pen. swer insists: “That the remuneration was sioners; (2) the privateer pensioners; and, (3) asked as a boon and respondent has under to act as agent for Navy disbursements. So stood and believes, was advocated, and granted that all this time may have been devoted to his as a gratuity.”
extra service; and none to the regular office It is admitted that Milnor was entitled, sep. duties of clerk. Because of his regular salary, arately, to one half of the money ordered to be the accounting officer refused to allow addi. paid by the act of Congress, and Thompson to tional compensation. To cover his claim for the other half.
this, M'Daniel bad retained nine hundred and Milnor applied to the treasury for one half eighty dollars, and was sued for it by the of the money, as did Metz, the trustee. The United States. The defendant's claim was department refused to examine the equities of allowed as an equitable set-off. the parties, or look beyond the act of Con. The case of Fillebrown, 7 Peters, 60, is to the gress. Metz filed his bill, enjoining Milnor same effect. These cases have been constantly from receiving the money; and had a decree followed, where services had been performed for a perpetual injunction.
at the instance of the government for which, The case relied on to sustain the assumption by the strict rules of accounting, no credit could that the money awarded was a gratuity, is that be given by the treasury. of Emerson v. Hall, 13 Peters, 409.
The ground that the government was the It was this: Emerson, Chew, and Lorrain, debtor, and the claim rested on its discretion; libeled a slave ship, and caused her to be con- or in other words, that it was as uncertain as demned, and claimed half of the proceeds of the the *pleasure of Congress; and until the (*227 ship and cargo, which was awarded to them Act of 1840 was passed, no claim existed below; but the decree was reversed by this against the United States, which could be ju.
dicially recognized as “property or effects,” | Spain had the power to make grants founded op of the insolvent, we think is decided to the any consideration, and subject to any restrictions contrary by this court in Comegys v. Vasse, 1 that government, it is so on the United States,
within her dominions. It à grant was biuding on Peters, 196.
the successor of Spain. All the grants of land Vasse assigned under the bankrupt law of made by the lawful authorities of the King of 1800. He had been an underwriter on policies the treaty, ratified and confirmed to the owners of of insurance on vessels seized and condemned the lands. Cited, Arredondo's case, 6 Peters, 706; by the government of Spain. The owners had and Percheman's case, 7 Peters, 51; sibbald's case,
10 Peters, 321. abandoned for a total loss, which the insurer
The grant to Atkinson was for the land he menhad paid; and was the successor to the rights tioned in his petition, or for any other lands that of the assured. The sentences of the Spanish within the quantity granted, not at the place spe prize courts were conclusive as to the right to cially mentioned in the grant, but at other places. the things condemned; and no claim existed on Held. that these surveys were valld, notwithstandthe part of the insurer that did not depend on Ing that they were made at different places. the discretion and pleasure of the Spanish gov.
PPEAL from the Superior Court of East the least of it, in that case as in the one before us. By the Treaty of 1819, Spain stipulated
This was an appeal from the decree of the with this government to pay five millions in Superior Court of East Florida, confirming the full discharge of the unlawful seizures; leav- claims of the heirs of Clarke and Atkinson to ing the United States to distribute the indem. fifteen thousand acres of land, under the acts nity, Vasse had awarded to him eight thou for the adjustment of land claims in Florida. sand
The claim was founded on eight hundred and forty-six dollars.
à petition of Comegys was the surviving assignee of the Atkinson, merchant of Fernandina, dated Oc. bankrupt. Vasse instituted suit against him, tober 8, 1816; and a decree of Governor Cop
The to try the right to the money. This court held, pinger thereon, dated October 20, 1816. that although the illegal sentences of the Span? petition states many services rendered to gov. ish prize courts were irreversible, the party ince, and prays that his Excellency would be
ernment, and benefits conferred on the prov. had not lost all right to justice, or claim, upon pleased "to grant him, in property, fifteen principles of international law to remuneration; that he had a right both to the justice of thousand acres of land in Cedar Swamp, and his own and the foreign sovereign; and that on the west of the lake named Upper Little this right passed by the general assignment of
Lake.” the bankrupt.
The governor's decree states, that, in con. The treaty in that case (as the act of Consideration of the merits cited, be grants him, in gress in this), operated on a pre-existing claim property, the lands he solicits in the petition; on a government. It follows, if the doctrine and that the Surveyor-General will run them of donation did not apply in that case, neither for him in the places he mentions, or (*229 can it in this.
in others that are vacant, and of equal con. Had a similar claim on the part of Mil. venience to the party. nor existed against an individual instead of
The originals of the petition and decree were the government, then there can be no doubt not produced in evidence, neither are they to he could have recovered by suit;
be found in the archives at St. Augustine.
it would have been the subject of set-off; or
A certified copy, under the hands of Thomas coull have been assigned. So it would have de Aguilar, secretary of the government (whose passed to his administrator in case of death. handwriting was proved), stated to be faith. As the government was equally bound to do fully drawn from the original in his office, was its debtor justice, in a different mode, with an alone offered; and was objected to on the part individual, think no sound distinction
of the appellants. The objection was overexists in the two cases; and, therefore, order
ruled. the decree to be affirmed.
There were also produced four several plats and certificates of survey, made by George J. F. Clarke, Surveyor-General, for George Atkinson.
1. Dated 20th January, 1818, for fourthou
sand acres of land, northwardly of Dunn's 228*) *THE UNITED STATES, Appellants, Creek, which runs from Dunn's Lake to the
river St. John's, and above the crossing place
of said creek. THE HEIRS OF GEORGE J. F. CLARKE, 2. Dated 12th March, 1818, for three thou. and The Heirs of George Atkinson, Appellees. sand acres of land, on the middle arm of Haw
Creek, which empties itself into Dunn's Lake, Spainish land grant in Florida, construction of. toward the east.
3. Dated 21st March, 1818, for two thousand
acres of land, in the place called Dupon's A Florida land claim. A of thousand acres by the Spanish Governor of East Hor: Hammock, southeasterly of Bowlegs' Prairie, ida, in consideration of important services per and southwestwardly of Paynestown. formed on behalf of the government of Spain, to 4. Dated 24th January, 1818, for six thou. George Atkinson, confirmed by the Supreme Court. sand acres, on Darcey's Creek, and extending
By the eighth article of the Florida Treaty, no grants of land made after the 24th of January, from the natural bridge of Santa Fe, on the 1818, were valid ; nor could a survey be valid on road called Ray's Trail. lands other than those authorized by the grant. Still the power to survey, in conformity to the
The petition to the court in this case, wus concessions, existed up to the change of fags. filed on the 22d day of May, 1829, in the name
of George J. F. Clarke, for himself, and the said alleged grant, is too vague to be the four-
Clarke having died, his heirs, on the 13th petition. The court below affirmed the surveys; day of July, 1840, filed a petition to revive the and if this court concurs in the decree, the suit, which was ordered accordingly on the 16th United States will be bound to issue patents for of July, 1840; and the cause came on to be the four tracts. That the complainants are en. heard on the 20th day of the same month. titled to the lands in two surveys, at the places The counsel for the claimants then moved the described in the petition, is not questioned; the court that the cause might also proceed in the difficulty is, could the interested party elect to name of Philip R. Youngs, and Mary Youngs, abandon his first locations, and then multiply his wife; Samuel Humphries, and Letitia the tracts ? Humphries, his wife; Jane Gains, widow of By the 8th article of the Florida Treaty no Dr. Joseph Gains; and Letitia Atkinson, heirs grants made after the 24th of January, 1818, and legal representatives of George Atkinson; were valid; nor could a survey be valid on lands and, with the assent of the atíorney of the other than those authorized by the grant: still, United States, it was ordered accordingly. the power to survey in conformity to the con:
No deed or conveyance, or evidence of any | cession existed up to the change of flags. kind was offered, to show that either Clarke or That Spain had the power to make grants, his heirs had any interest whatever in the lands. founded on any *consideration, and sub- (*232
After hearing testimony, the court made a ject to any restrictions within her discretion, is decree in favor of the claimants, from which a settled question. If the act was binding on the present appeal is taken.
that government, so it is on this, as the sucThe case was argued by Mr. Legaré, the At. cessor of Spain. All the grants of lands, made torney General, for the United States. For by the lawful authorities of the King of Spain, the Ŭnited States it was contended that the before the 24th of January, 1818, were by the decree ought to be reversed, on the following treaty ratified and confirmed to the owners of grounds:
the lands. Such is the construction given to 1. That there is no evidence that Clarke or the eighth article by this court in Arredondo's his heirs had any interest in the lands; and case, ő Peters, 706, and in Percheman's case, 7 the petition, so far as regards them, ought to Peters, 61; that is, imperfect titles have been dismissed.
equally binding on this government after the 2. That the time limited by the acts of Con- cession, as they had been on the Spanish gove gress, for the commencement of the proceed.ernment before. The grant to Atkinson was ings in court, having expired before the heirs for the lands he mentioned, or for any other of Atkinson were made parties, the court had lands that were vacant; and the Surveyor-Gen. no jurisdiction as to the validity of the grant, so eral was especially directed to lay them off in far as they were concerned.
either way; the grant giving him an unre. 3. That there was no sufficient evidence that stricted discretion over the entire vacant lands the said alleged grant or concession was ever of the province, to satisfy the highly meritorious made by Governor Coppinger.
claim of the petitioner; for however doubtful 231*) *4. That Governor Coppinger had no the merits of many claims may have been, as authority to make such a grant.
presented to us, of the justice of this there can 5. That the description of the lands, in the be nu question; it had in it peculiar equities,
On the 26th
and therefore the party had conceded to him Street, was,, in 1823, illed up, at the cost of the peculiar privileges in selecting the lands. The sidewalks
along Water Street were paid to the official, and well-defined duties of the Surveyor: city of Mobile by the owner of the lot. General, are set forth in Hanson's case, and of Mobile bad brought suit for taxes, and bad adneed not be repeated. He was acting for the vertised the lot for sale, as the property of a tengovernment when making the survey, and of May, 1824, Congress passed an act, which de bound to protect the public domain, within the clared, in the first section, that all the right and restrictions imposed by the governor's decree; claim of the United States to the lots known as he did not exceed the decree by going to other three fourths of an acre of land in the State of places than those pointed out in the petition; Alabama; and all the right and claim of the and therefore did not exceed his authority, un
United States to all the lots not sold or confirmed less it was in making more surveys than two. and to which 'no equitable title exists, in favor
to individuals, either by this or any former act, This point was settled in Sibbald's case, 10 any individual under this or any other act, bePeters, 321. His was a mill grant for five miles tween high water-mark and the channel of the square, on Trout Creek; and in the event that Boundary Street, in front of the city of Mobile,
North situation would not permit the quantity of six- should be vested in the corporation of the city of teen thousand acres, he asked, and had granted Mobile for the use of the city forever. The second
section provides, "that all the right and claiın of to him an equivalent of the deficiency, not at a the United States to so many of the lots east of particular place, but generally. In 1819, a tract Water Street, and between Church Street and of ten thousand acres was surveyed at Trout North Boundary Street, now known as water-lots Creek. In February, 1820, another of four and the front of the lots, known under the Spanish thousand acres was surveyed thirty miles off government as water-lots, in the said city of Moat Turnbull's Swamp-and the remaining two bile, whereon improvements have been made, be, thousand at Bowleg's Hammock, some thirty prietors and occupants of each of the lots hereto miles in a different direction. It was proved fore fronting on the river Mobile." etc. The city that no more than ten thousand acres could be of Moblle claimed from the defendant in error the had at Trout Creek, because of interfering ed States, and the improvements before described :
lot beld by him, under the purchase from the Unitelder claims, and injury to third persons. asserting that the same was vested in the city bg The court adjudged, in effect, that the equiva- the frst section of the Act of 1824. Held, that unlent referred to quantity rather than form der the provisions of the second section of the act, 233*] *of survey; and that the six thousand made under the Act of 1818. and under the Act acres deficient could be surveyed on any vacant of 1824, was entitled to the lot. lands in the province, and in several surveys; to the water-lots, "lying east of Water Street, and
The right relinquished by the United States was the only authority for doing so, was that an between Church Street and North Boundary Street, equivalent was decreed in case of deficiency. now known as water-lots, as are situated between The two last surveys were confirmed, on the the channel of the river and the front of the lots,
known under the Spanish government as water precise ground that, as to the equivalent, the lots, in the said city of Mobile, whereon improve party was not restricted to any particular spot, me the water and not to the front lots. A : 235 nor to any form or number of surveys, and reasonable construction of the act requires the imtherefore might elect any vacant lands, and at provements to have been made or owned by the different places.
proprietor of the front lot, at the time of the pasSibbald’s was a weaker case than the present, sage of the act. Being proprietor of the front lot. the words of the grant being less explicit; the east of Water Street, constitute the conditions on principles presented being precisely the same in which the right under the statute vests. both, we cannot reverse the decree below with
N error to the Supreme Court of Alabama. the court below was bound to conform. We therefore order the decree to be affirmed.
The plaintiffs in error instituted an action, called in the language of the laws of Alabama "a plea of trespass to try titles," against Mi.
guel D. Eslava, the purpose of which was the 234"] *THE MAYOR and ALDERMEN OF recovery of possession and damages for the deTHE CITY OF MOBILE, Plaintiffs in Error,
tention of a certain lot of ground, in the city of
Mobile, bounded north by ground in the posMIGUEL D. ESLAVA, Defendant in Error.
session of Thomas Terry, east by Commerce
Street, south by Church Street, west by Water Construction of special act of Congress grant. Street; and extending from the east side of
Commerce Street to the channel of the river. ing “water-lot” in Mobile.
The cause was tried in the Circuit Court, in A lot of ground, part of the ground on which November, 1837, and a judgment on the verdict Fort Charlotte had been erected, in the city of Mo- of a jury was rendered for the defendant. The bile, before the territory was acquired from Spain plaintiff's took a bill of exceptions to the charge by the United States, had been sold under an act of the court, and afterwards prosecuted a writ of Congress of 1818. The lot had been laid out according to a plan by which a street called Water of error to the Supreme Court of Alabama, Street was run along the margin of Mobile River; where the judgment of the Circuit Court was and the street was extended over part of the site of affirmed. The plaintiffs took out this writ of Fort Charlotte. Water Street, but when sold by the United States, error to the Supreme Court of the United Its eastern line was below high water-mark of the States. river. The purchaser of this lot improved the lot lying in front of it, east of Water Street, having
The bill of exceptions stated that the lot in dlled it up, at a beavy expense, thus reclaiming it controversy was held by the defendant, under from the river, which at high water bad covered it. the following circumstances: By an act of ConWhen the lot each of Water Street was purchased, the purchaser could not pass along the street, ex: gress, passed in 1818, the lot of ground whereon cept with the aid of logs, and other timber. Water Fort Charlotte, in the town of Mobile, had been
out overruling the former decision—to which IN