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 act giving him a sum of money for those extra serv- It is the assignment which gives the right, if ices. Held, that the assignee, under the insolvent any was given. 3 Petersdorff, 486. laws, was entitled to receive from the Treasury of the United States, the amount so allowed. The act of Congress limits the salaries of gaugers to fifteen hundred dollars; and thus it is obvious that Milnor and Thompson had not ON appeal from the Circuit Court of the Unit- a scintilla of legal right to further compensa ed States for the County of Washington, in the District of Columbia. The appellants, Milnor and Thompson, were, during the years 1836 and 1837, United States gaugers for the port of Philadelphia, and as such received the full compensation allowed by law for that period. The duties having been rendered unusually laborious during the year, by the operation of the Act of July 4th, 1836, reducing the duties on wines, under which they were required to regauge them, they appealed to Congress for extra compensation, to the amount of their full ordinary fees for these additional services. Their memorial to Congress was presented in January, 1838; and in May, 1840, an act was passed for their relief, by which the sum of "two thousand seven hundred and fifty-seven dollars and twenty-three cents, being the amount of fees due to them for extra services as gaugers in the port of Philadelphia, after the passage of the Act of 4th July, 1836, reducing the duties on wines." George W. Metz made no claim before Congress, as the assignee to Robert Mil tion from the United States. A claim of this king, being one for a gratuity, a benefaction cannot be passed under the assignment. It must be an actual interest, not an expectancy. *If the assignee of Milnor had any [*223 right, it should have been presented to Congress. The power of the Legislature over the matter was complete. They have given the sum allowed to Robert Milnor; and the Circuit Court had no power to alter the donation. The Secretary of the Treasury rejected the application of the assignee, and his decision was conclusive. Cited, Decatur v. Paulding, Secretary of the Navy, 14 Peters, 497. Mr. Bradley, for the appellee, insisted that the claim by the appellee, as assignee of Robert Milnor, to the portion of the sum allowed by Congress to Robert Milnor, was valid, and that the claim had passed to the assignee under the assignment. The appellant claimed from Congress a compensation for extra services performed by hint for the United States, before he took the benefit of the insolvent laws of Pennsylvania, 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 petivania; and he was discharged in January, 1839, having executed the usual assignment for the benefit of his creditors. The appellee, George W. Metz, was duly qualified, and became the sole assignee. nor. After the Act of 1840 had passed, he applied at the Treasury Department, claiming the amount of the sum allowed by the same to Robert Milnor, being one half of the whole sum allowed; the other portion belonging to John Thompson. This application was rejected; and this suit was instituted against the appellants. The court made a decree in favor of the appellee; and the appellant, Robert Milnor, prosecuted this appeal. The case was argued by Mr. Clement Coxe for the appellant, and by Mr. Bradley for the appellee. Mr. Coxe contended: 1. That there was no purpose of Milnor to make the dedication claimed; and that his purpose, either way, is immaterial, as the insolvent law determines, without reference to it, what shall, and what shall not be included in the assignment. 2. That the insolvent, at the time of his assignment, had no such interest in the claim upon Congress as could pass by that instru ment. 3. That Congress had the right to model their relief at pleasure, and having granted it to Milnor, and not to his assignee, the latter is without relief by the present suit. Although, in the schedule of property an tioners, would have been matter of set-off. The United States v. Tillotson, 7 Peters, 28; The United States v. Ripley, 7 Peters, 26. The principle of law which may be derived from these cases is, that if any one shall perform services at the instance or request of the government of the United States, he is entitled to compensation. The right to compensation is property belonging to the party who has done the services, and as such belongs to the creditors of the insolvent. The principles which are in question in this case were settled by the court in the case of Comegys v. Vasse, 1 Peters, 193. It was held in that case that it was immaterial who presented the claim. The money recov ered belonged to the assignee. Mr. Coxe denied that any legal claim existed on the United States for compensation. The salary of the gaugers was fixed by law, and whatever else they obtained was a gratuity. He cited 13 Peters, 409, as in all respects sustaining the claims of the appellant. The decision of the court in the case of Comegys v. *Vasse was given on the terms of the [*224 Spanish Treaty, which fully authorized the claim of the assignee. Mr. Justice Catron delivered the opinion of the court: The question in this cause is, whether a claim on the United States passed by an assignment made by Milnor, an insolvent, by force of an act of Pennsylvania, where the insolvent resided, and where the assignment took place. The application was made to the Court of Common Pleas of Philadelphia County, 24th December, 1838. According to the require ments of the Insolvent Act, there was presented: "A statement of all the estate, effects, and property of the petitioner, wheresoever situate, and of whatsoever kind." He says, "Your petitioner has no property of any kind except the following claim, viz.: "A claim on the government of the United States for about three thousand seven hundred and seventy-four dollars and fifty cents." Assignees were appointed by the court, to whom the following assignment was made: Know all men by these presents, that I, sand eight hundred and thirty six. Robert Milnor, [L. S.] court on the ground that Emerson, Chew, and Lorrain, as surveyor, collector, and naval officer of the port of New Orleans, had no right as captors; and that they stood on the footing of an officer who made a military seizure. Emerson died; and in 1831 Congress passed an act bestowing on his legal representatives, and on Chew and Lorrain, the one half of the condemnation money. Hall, as a creditor of Emerson, filed his petition in the Probate Court at New Orleans, against Byrne, the curator of the heirs of Emerson, for the payment of his debt out of the moneys received under the act of Congress. The Probate Court, and the Supreme Court of Louisiana, on appeal gave judgment for Hall; and on writ of error prosecuted to [*226 this court, the judgment was reversed on the ground that the act of Congress gave the money to Emerson's heirs as a gratuity, because of the meritorious conduct of their father. Say the court: "He acted under no law, nor by virtue of any authority; his acts imposed no obligation, either in law or equity, on the gov ernment. Had he been sued for a debt due to it, he could not have set up these services, either as an equitable or legal set-off." They are declared to be like those, where an individual, by timely exertion, saves the public property from destruction by fire; or where a pension is given to heirs for military services of the ancestor. On the 3d of May, 1840, Congress passed an act for the relief of Robert Milnor and John 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 port of Philadelphia, after the passage of the Act of the 4th of July, 1836, reducing the duties on wines, then in custom stores in said port, and commencing with the provisions of said act." the demand was rejected by the accounting officers, because they had no discretion to go beyond the law, or an express regulation founded on it. The equity of the claim was free from doubt. The gaugers only received 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-more 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 penswer 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. 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 paid by the act of Congress, and Thompson to the other half. Milnor applied to the treasury for one half of the money, as did Metz, the trustee. The department refused to examine the equities of the parties, or look beyond the act of Congress. Metz filed his bill, enjoining Milnor from receiving the money; and had a decree for a perpetual injunction. The case relied on to sustain the assumption that the money awarded was a gratuity, is that of Emerson v. Hall, 13 Peters, 409. It was this: Emerson, Chew, and Lorrain, libeled a slave ship, and caused her to be condemned, and claimed half of the proceeds of the ship and cargo, which was awarded to them below; but the decree was reversed by this So the accounting officer refused to allow additional compensation. To cover his claim for this, M'Daniel had retained nine hundred and eighty dollars, and was sued for it by the United States. The defendant's claim was allowed as an equitable set-off. The case of Fillebrown, 7 Peters, 50, is to the same effect. These cases have been constantly followed, where services had been performed at the instance of the government for which, by the strict rules of accounting, no credit could be given by the treasury. The ground that the government was the debtor, and the claim rested on its discretion; or in other words, that it was as uncertain as the pleasure of Congress; and until the [*227 Act of 1840 was passed, no claim existed against the United States, which could be ju dicially recognized as "property or effects," of the insolvent, we think is decided to the contrary by this court in Comegys v. Vasse, 1 Peters, 196. Spain had the power to make grants founded on any consideration, and subject to any restrictions within her dominions. If a grant was binding on that government, it is so on the United States, the successor of Spain. All the grants of land made by the lawful authorities of the King of the treaty, ratified and confirmed to the owners of Spain, before the 24th of January, 1818, were, by the lands. Cited, Arredondo's case, 6 Peters, 706; and Percheman's case, 7 Peters, 51; Sibbald's case, 10 Peters, 321. The grant to Atkinson was for the land he mentioned in his petition, or for any other lands that within the quantity granted, not at the place spe were vacant. Three surveys were made of lands cially mentioned in the grant, but at other places. Held, that these surveys were valid, notwithstanding that they were made at different places. APPEAL from the Superior Court of East Florida. Vasse assigned under the bankrupt law of 1800. He had been an underwriter on policies of insurance on vessels seized and condemned by the government of Spain. The owners had abandoned for a total loss, which the insurer had paid; and was the successor to the rights of the assured. The sentences of the Spanish prize courts were conclusive as to the right to the things condemned; and no claim existed on the part of the insurer that did not depend on the discretion and pleasure of the Spanish gov. ernment. The equity was as remote, to say 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. The claim was founded on a petition of sand eight hundred and forty-six dollars. Comegys was the surviving assignee of the Atkinson, merchant of Fernandina, dated Ocbankrupt. Vasse instituted suit against him, tober 8, 1816; and a decree of Governor Copto 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 govish prize courts were irreversible, the party ince, and prays that his Excellency would be ernment, and benefits conferred on the provhad 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 the bankrupt. The governor's decree states, that, in conThe treaty in that case (as the act of Consideration of the merits cited, he 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 in others that are vacant, and of equal con can it in this. Lake." The 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 be found in the archives at St. Augustine. he could have recovered by suit; or it would have been the subject of set-off; or A certified copy, under the hands of Thomas could 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 faithAs 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 of the appellants. The objection was alone offered; and was objected to on the part individual, we think no sound distinction exists in the two cases; and, therefore, order the decree to be affirmed. ruled. over There were also produced four several plats and certificates of survey, made by George J. F. Clarke, Surveyor-General, for George At kinson. 1. Dated 20th January, 1818, for four thou sand acres of land, northwardly of Dunn's 228*] *THE UNITED STATES, Appellants, Creek, which runs from Dunn's Lake to the V. THE HEIRS OF GEORGE J. F. CLARKE, and The Heirs of George Atkinson, Appellees. Spainish land grant in Florida, construction of. A Florida land claim. A grant of afteen thousand acres by the Spanish Governor of East Florida, in consideration of important services performed on behalf of the government of Spain, to George Atkinson, confirmed by the Supreme Court. By the eighth article of the Florida Treaty, no grants of land made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant. Still the power to survey, in conformity to the concessions, existed up to the change of flags, river St. John's, and above the crossing place of said creek. 2. Dated 12th March, 1818, for three thousand acres of land, on the middle arm of Haw Creek, which empties itself into Dunn's Lake, toward the east. 3. Dated 21st March, 1818, for two thousand acres of land, in the place called Dupon's Hammock, southeasterly of Bowlegs' Prairie, and southwestwardly of Paynestown. 4. Dated 24th January, 1818, for six thousand acres, on Darcey's Creek, and extending from the natural bridge of Santa Fe, on the road called Ray's Trail. The petition to the court in this case, was filed on the 22d day of May, 1829, in the name 6. That there is no authority in the said alleged grant to survey four different tracts of land. No counsel appeared for the appellees. of George J. F. Clarke, for himself, and the said alleged grant, is too vague to be the founheirs and legal representatives of George At-dation of a valid survey. kinson, deceased, and sets forth the grant; and that the claim of Atkinson had been filed before the land board of East Florida, who rejected the same, but did not report it forged or antedated; and that he had legal right, under the said George Atkinson, to acres, parcel of the said land. On the 21st May, 1830, the district attorney filed his answer, which, inter alia, states, that "the petitioner had not shown whether or not the said George Atkinson died intestate, or who are the legal heirs of the said George Atkinson, whether they are minors or otherwise, if any such there be; nor, indeed, has he expressly alleged that the said George Atkinson left any legal heirs or representatives, or that any such now exist; nor has he shown 280*] any title in himself to the said tract of land, or any part thereof; nor has he stated or set forth in his petition any bargain, sale, or deed, or deeds of conveyance from the said George Atkinson, in his lifetime, or from any of the said legal representatives of the said George Atkinson, since his death, to the said petitioner, to all or any part of the said lands, or in what right he claims, whether by gift, descent, devise, conveyance, or otherwise; and this respondent replies upon the aforesaid defects in the petition or bill of complaint, as matter of defense on the hearing of this cause." Clarke having died, his heirs, on the 13th | day of July, 1840, filed a petition to revive the suit, which was ordered accordingly on the 16th of July, 1840; and the cause came on to be heard on the 20th day of the same month. The counsel for the claimants then moved the court that the cause might also proceed in the name of Philip R. Youngs, and Mary Youngs, his wife; Samuel Humphries, and Letitia Humphries, his wife; Jane Gains, widow of Dr. Joseph Gains; and Letitia Atkinson, heirs and legal representatives of George Atkinson; and, with the assent of the attorney of the United States, it was ordered accordingly. No deed or conveyance, or evidence of any kind was offered, to show that either Clarke or his heirs had any interest whatever in the lands. After hearing testimony, the court made a decree in favor of the claimants, from which the present appeal is taken. Mr. Justice Catron delivered the opinion of the court: In 1816, George Atkinson set forth to the Governor of East Florida, various important services, through a series of years, performed in behalf of the government, and also many losses; in consideration of which, he solicited a grant in property of fifteen thousand acres of land, in Cedar Swamp, and on the west of upper Little Lake. The governor granted the lands in property; and added: "Consequently the Surveyor-General will run them for him in the places he mentions, or in others that are vacant and of equal convenience to the party." Two places were designated where the lands were to lie by the petition. They were surveyed on four places: the first survey for four thousand acres near Dunn's Creek; the second for three thousand acres on Haw Creek; the third for two thousand acres in Dupon's Hammock; and six thousand acres on Darcey's Creek. One bears date the 20th of January, 1818, and the other three in March, of that year. None of them are on the lands solicited in the petition. The court below affirmed the surveys; and if this court concurs in the decree, the United States will be bound to issue patents for the four tracts. That the complainants are entitled to the lands in two surveys, at the places described in the petition, is not questioned; the difficulty is, could the interested party elect to abandon his first locations, and then multiply the tracts? By the 8th article of the Florida Treaty no grants made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant: still, the power to survey in conformity to the concession existed up to the change of flags. That Spain had the power to make grants, founded on any consideration, and sub- [*232 ject to any restrictions within her discretion, is a settled question. If the act was binding on 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 the United States it was contended that the decree ought to be reversed, on the following grounds: 1. That there is no evidence that Clarke or his heirs had any interest in the lands; and the petition, so far as regards them, ought to have been dismissed. by the lawful authorities of the King of Spain, before the 24th of January, 1818, were by the treaty ratified and confirmed to the owners of the lands. Such is the construction given to the eighth article by this court in Arredondo's case, 6 Peters, 706, and in Percheman's case, 7 Peters, 51; that is, imperfect titles were 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 gov. 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-Genno 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 unrestricted discretion over the entire vacant lands of the province, to satisfy the highly meritorious claim of the petitioner; for however doubtful the merits of many claims may have been, as presented to us, of the justice of this there can be no question; it had in it peculiar equities, 3. That there was no sufficient evidence that the said alleged grant or concession was ever made by Governor Coppinger. 231*] 4. That Governor Coppinger had no authority to make such a grant. 5. That the description of the lands, in the and therefore the party had conceded to him | Street was, in 1823, filled up, at the cost of the Taxes and assessments for making peculiar privileges in selecting the lands. The city of Mobile. 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. The city General, are set forth in Hanson's case, and of Mobile had brought suit for taxes, and had adneed not be repeated. He was acting for the Vertised the lot for sale, as the property of a tenant under the purchaser of the lot. On the 26th government 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 the Hospital and Bakehouse lots, containing about 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, unUnited States to all the lots not sold or confirmed to individuals, either by this or any former act, less it was in making more surveys than two. and to which no equitable title exists, in favor of This point was settled in Sibbald's case, 10 any individual under this or any other act, be Peters, 321. His was a mill grant for five miles tween high water-mark and the channel of the river, and between Church Street and North square, on Trout Creek; and in the event that Boundary Street, in front of the city of Mobile, 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 claim 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, as are situated between the channel of the river 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 heretoand the same are hereby vested in the several promiles 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 Mobile claimed from the defendant in error the had at Trout Creek, because of interfering ed States, and the improvements before described: lot held by him, under the purchase from the Unitelder claims, and injury to third persons. asserting that the same was vested in the city by The court adjudged, in effect, that the equiva- the first section of the Act of 1824. Held, that under the provisions of the second section of the act, lent referred to quantity rather than form the defendant in error claiming under the purchase 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 waterprecise ground that, as to the equivalent, the lots, in the said city of Mobile, whereon improveThe improvements refer party was not restricted to any particular spot, ments have been made." nor to any form or number of surveys, and to the water and not to the front lots. A [235 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 pasand having improved the water-lot opposite and sage of the act. Being proprietor of the front lot, east of Water Street, constitute the conditions on which the right under the statute vests. Sibbald's was a weaker case than the present, the words of the grant being less explicit; the principles presented being precisely the same in both, we cannot reverse the decree below with N error to the Supreme Court of Alabama. out overruling the former decision to which IN the court below was bound to conform. We therefore order the decree to be affirmed. 234*] *THE MAYOR and ALDERMEN OF THE CITY OF MOBILE, Plaintiffs in Error, V. MIGUEL D. ESLAVA, Defendant in Error. Construction of special act of Congress granting "water-lot" in Mobile. The plaintiffs in error instituted an action, called in the language of the laws of Alabama "a plea of trespass to try titles," against Miguel D. Eslava, the purpose of which was the recovery of possession and damages for the detention of a certain lot of ground, in the city of Mobile, bounded north by ground in the possession of Thomas Terry, east by Commerce Street, south by Church Street, west by Water Commerce Street to the channel of the river. Street; and extending from the east side of The cause was tried in the Circuit Court, in November, 1837, and a judgment on the verdict of a jury was rendered for the defendant. The plaintiffs took a bill of exceptions to the charge of the court, and afterwards prosecuted a writ of error to the Supreme Court of Alabama, where the judgment of the Circuit Court was affirmed. The plaintiffs took out this writ of error to the Supreme Court of the United States. A lot of ground, part of the ground on which Fort Charlotte had been erected, in the city of Mobile, before the territory was acquired from Spain by the United States, had been sold under an act of Congress of 1818. The lot had been laid out according to a plan by which a street called Water Street was run along the margin of Mobile River; and the street was extended over part of the site of Fort Charlotte. The lot was situated west of Water Street, but when sold by the United States, Its eastern line was below high water-mark of the river. The purchaser of this lot improved the lot The bill of exceptions stated that the lot in lying in front of it, east of Water Street, having alled it up, at a heavy expense, thus reclaiming it controversy was held by the defendant, under from the river, which at high water had 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 |