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INDEX.

ACKNOWLEDGMENT. See Feme Covert.

ADVERSE POSSESSION. See New Jersey.

ASSUMPSIT.

Receiving the price of goods sold and to be delivered, the refusal to
deliver, and a conversion, constitute plenary evidence of an implied
promise to refund the price paid for them, and an action for money
had and received is an appropriate remedy on such refusal to deliver.
Nash v. Towne, 689.

ASSURANCES. See Legislative Power, 2, 3; Statutes, 6.

AWARD.

1. Where a resolution of Congress authorized one of the executive de-
partments to settle, on principles of justice and equity, all damages,
losses, and liabilities incurred or sustained by certain parties who had
contracted to manufacture brick for the government, Provided "that
the said parties first surrender to the United States all the brick made,
together with all the machines and appliances, and other personal prop-
erty prepared for executing the said contract, and that said contract
be cancelled," an award is not within the resolution, which, taking a
surrender of real estate-the brick-yard-where the brick, machinery,
and appliances were, makes allowance for it. De Groot v. United
States, 420.

2. Where an award exceeds the submission, embracing matters that are
not within the submission, as well as those which are, and it is im-
possible for the court to apportion the parts,—the award is not obliga-
tory on the party disadvantageously affected by it. Id.

3. Where a party carrying on an agency for another, becomes thus in-
debted to this other, and agrees that an accountant shall examine
books and ascertain from them the exact amount due, "the amount
so found to be due and owing to be final,”—the agreement is not "a
submission to arbitration," nor is the amount found by the account-
ant an "award" in any such sense as will make them subject to the
strict rul governing arbitrations and awards. Kelly v. Crawford,
785.

(839)

BILL OF EXCEPTION. See Practice, 5.

CALIFORNIA.

1. The treaty of Guadalupe Hidalgo between the United States and Mex-
ico, does not divest the pueblo, existing at the site of the city of San
Francisco, of any rights of property or alter the character of the in-
terests it may have held in any lands under the former government.
Townsend et al v. Greeley, 326.

2. The act of March 3d, 1851, does not change the nature of estates in
land held by individuals or towns. If the claim was held subject to
any trust before presentation to the board, the twist was not dis-
charged by the confirmation and the subsequent patent. The con
firmation only enured to the benefit of the confirmee so far as the
legal title was concerned. Id.

3. By the laws of Mexico, in force on the acquisition of the country, pue-
blos or towns in California were entitled, for their benefit and the
benefit of their inhabitants, to the use of lands constituting the site of
such pueblos and towns, and of adjoining lands, within certain pre-
scribed limits. The right of the pueblos in these lands was a re-
stricted and qualified right to alienate portions of the land to its in-
habitants for building or cultivation, and to use the remainder for
commons, for pasture lands, or as a source of revenue, or for other
rublic purposes. This right of disposition and use was, in all partic-
ulars, subject to the control of the government of the country. Id.
4. Lands thus held by pueblos or towns, under the Mexican government,
are held by them in trust for the benefit of their inhabitants; and are
held subject to a similar trust by municipal bodies, created by legisla-
tion since the conquest, which have succeeded to the possession of
such property. Id.

5. The municipal lands held by the city of San Francisco, as successor to
the former pueblo existing there, being held in trust for its inhabit-
ants, are not the subject of seizure and sale under judgment and exe-
cution against the city. Id.

6. A pueblo, or town of Mexico, once formed and officially recognized,
became entitled, under the laws of that country, to the use of cer-
tain lands, for its benefit and the benefit of its inhabitants, and the
lands were upon petition set apart and assigned to it by the govern-
ment. No other evidence of title than such assignment was required,
nor was any other given. The disposition of the lands assigned was
subject at all times to the control of the government of the country.
United States v. Pico, 536.

7. The decree of a governor of California held, under special circumstances,
set forth in the case, to constitute only a naked license to occupy the
land provisionally; that this license was a personal privilege of the
parties, and upon their death did not extend to their heirs, and that
a claim for land, resting upon such a license, is not entitled to con-
firmation under the act of Congress of March 3, 1851. De Haro v.
United States, 599.

8. Th term titulo, in the Spanish language, only means the instrument

CALIFORNIA (continued).

which is given as evidence of the right, interest, or estate conferred;
it does not indicate the measure of such right, interest, or estate;
hence it applies equally to papers which convey title in the usual ac-
ceptation of the term, and to those which confer a mere right of oc-
cupancy. Id.

1. Where two grants in California, made by the Mexican government,
were both for specific quantities without designation of location or
bounds, except that they were within the same general outboundaries,
which included a much larger quantity of land than was specified in
both grants, the location by occupation and settlement of the second
grantee under a provisional license of an earlier date than the first
grant was properly respected in the survey of his land after his grant
was confirmed. United States v. Armijo, 444.

10. Where a grant was of a specified quantity within exterior limits em-
bracing a much larger quantity, there is no obligation on the govern-
ment to allow the quantity to be selected in accordance with the wishes
of the grantee. The duty is discharged when the right conferred by
the grant to the quantity designated is attached to a specific and de-

fined tract. Id.

11. Under our system the grantee is allowed the privilege of directing a
selection of the quantity granted, subject only to the restriction that
the selection be made in one body, and in a compact form; but the
exercise of the privilege is not permitted to defeat the equitable prior
rights of others. Id.

12. As compactness of form often depends upon physical circumstances
not to be controlled, it will be sufficient if the survey be in reasonable
conformity with the decree of confirmation. Id.

13 Long-continued and undisturbed possession of land in California, whilst
that country belonged to Spain or Mexico, under a simple permission
to occupy it from a priest of an adjoining mission, or a local military
commander, did not create an equitable claim to the land against
either of the governments of those countries; nor one entitled to con-
firmation by the tribunals of the United States under the act of Con-
gress of March 3d, 1851. Serrano v. United States, 451.

14. When, in Mexican grants, boundaries are given, and a limitation upon
the quantity embraced within the boundaries is intended, words ex-
pressing such intention are generally used. In their absence the ex-
tent of the grant is only subject to the limitation upon the power of
the governor imposed by the colonization law of 1824. United States
v. Pico, 536.

15. Where a doubt arises upon the meaning of the grant as to the quantity
ceded, reference may be had to the juridical possession delivered to the
grantee. This proceeding had the efficacy of a judicial determination,
and binds our government. Id.

16. After the passage by the legislature of California of the act of May 14,
1861, there was no authority for the sale or purchase of salt-marsh or
tide-lands within five miles of the city of San Francisco. O'Neal v.
Kirkpatrick, 791.

CALIFORNIA (continued).

17. The holder of the slightest interest, intervening in a California land
case, if properly before the court, has the right to insist upon a fair
location of the quantity granted, however much such location may
clash with the wishes of his co-owners. United States v. Armijo, 444.
18. Final decrees in cases of land claims derived from the Spanish or Mex-
ican governments presented to the Land Commissioners for adjudica-
tion, whether made by the commissioners or by the District Court,
unless an appeal is taken, are conclusive between the United States
and the claimants. Higueras v. United States, 827.

19. Parties may except to an order or decree of the District Court setting

the survey aside and annulling it, or correcting and modifying it, and
appeal from the same; but the questions for decision here are those
only which are presented in the exceptions. Id.

20. Such an appeal does not open the decree of confirmation for revision.
Id.

COLLECTOR.

A collector of customs is entitled to retain, under the fifth section of the act
of March 3d, 1841 (5 Stat. at Large, 432), a sum not exceeding $2000
per annum from his receipts, as storage for the custody and safe-keep-
ing of imported merchandise entered for warehousing and stored in
United States v. Macdonald, 647.

bonded warehouses.

COMITY-Between STATE AND FEDERAL COURTS. See Conflict of Juris-
diction, 6.

Where a State court, construing a statute of its own State, sustained a
trust as against creditors,-this court followed that construction of the
statute, and sustained the trust; though they remarked that if the
question had been to be treated by them on general principles of ju-
risprudence, and independently of the State decision on the statute,
the judgment would necessarily have been the other way. Nichols v.
Levy, 433.

COMMERCIAL LAW. See Customs, 3; Lien, 1, 2.

COMMON CARRIER.

1. A discharge of goods upon the wharf, giving reasonable notice to the
consignee, constitutes a delivery. The Eddy, 481.

2. Where goods, after being so discharged are not accepted, the carrier
discharges himself from liability on his contract of affreightments by
storing them safely and notifying to the consignee that they are so
stored, subject to the lien of the ship for the freight and charges. Id.

CONDITIONS.

I. AS DISTINGUISHED FROM LIMITATIONS.

1. Whether words in a devise constitute common law conditions annexed
to an estate, a breach of which, or any one of which, will work a for-

CONDITIONS (continued).

feiture, or whether they are regulations for the management of the
estate, and explanatory of the terms under which it was intended to
have it managed, is to be gathered, not from a particular expression
in the devise, but from the whole instrument. Stanley v. Colt, 119.

II. NON-FULFILMENT OF.

2. Where a vast tract was granted in 1750 by the crown of France on
condition of improvement and occupancy, and with a view of its be-
ing a refuge and protection for travellers against Indians then inhab-
iting the region, the erection of three or four temporary huts for
laborers, clearing a few acres of land around the fort, planting them
with corn,
and placing upon the tract seven head of cattle and two
horses, are an insufficient compliance with the conditions; even when
a claim to the land is to be adjudicated "on principles of natural jus-
tice," there not having been after 1754 (over a century before the
commencement of the suit), any possession or occupancy by the gran-
tees, or their descendants, tenants, or assigns, or further improve-
United States v. Repentigny, 211.

ment.

CONFLICT OF JURISDICTION.

I. STATE AND FEDERAL. See Constitutional Law, 1, 2.

1. Licenses under the act of June 30, 1864, "to provide internal revenue
to support the government," &c. (13 Stat. at Large, 223), and the
amendatory acts, conveyed to the licensee no authority to carry on
the licensed business within a State. License Tax Cases, 462.

2. The requirement of payment for such licenses is only a mode of impos-
ing taxes on the licensed business, and the prohibition, under penal-
ties, against carrying on the business without license, is only a mode
of enforcing the payment of such taxes. Id.

3. The provisions of the act of Congress requiring such licenses, and im-
posing penalties for not taking out and paying for them, are not con-
trary to the Constitution or to public policy. Id.

4. The provisions in the act of July 13, 1866, "to reduce internal taxation,"
&c. (14 Stat. at Large, 93), for the imposing of special taxes, in lieu
of requiring payment for licenses, removes whatever ambiguity ex-
isted in the previous laws, and are in harmony with the Constitution
and public policy. Id.

5. The recognition by the acts of Congress of the power and right of the
States to tax, control, or regulate any business carried on within its
limits, is entirely consistent with an intention on the part of Congress
to tax such business for national purposes. Id.

6. A license from the Federal government, under the internal revenue acts
of Congress, is no bar to an indictment under a State law prohibiting
the sale of intoxicating liquors. Pervear v. The Commonwealth, 475.

II. BETWEEN COURTS OF STATES.

7. Where personal property is seized and sold under ar attachment, or
other writ, issu ng from a court of the State where the property is,

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