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The Monte Allegre and the RAINHA DE LOS

Anjos. The Portuguese Consul General, Libellant.

A question of fact upon the bona fides of an alleged sale of Portuguese

ships, and their cargoes, which bad been captured in violation of our neutrality. Restitution to the original owners decreed.

March 14th.

APPEAL from the Circuit Court of Maryland.

These causes were argued by Mr. Winder, for the appellant and claimant, and by Mr. D. Hoffman, for the respondent and libellant ; but as the same points were insisted on as in the preceding cases of the Gran Para and the Arrogante Barcelones, ante pp. 471. 496., it is not thought necessary to report the argument of counsel in the present case. The facts are stated in the opinion of the Court.

was

March 18th. Mr. Chief Justice MARSHALL delivered the opinion

of the Court.

The Monte Allegre was captured by the private armed vessel called La Fortuna, cruising at the time under a commission from the chief of the Oriental Republic. She was completely fitted out, equipped, and manned, in Baltimore, from which port she sailed on her first cruize, in December, 1816; owned and commanded by citizens of the United States; but com uissioned by the government of Buenos Ayres. She sailed again oa her second cruize, in August, 1922.

The Monte Allegre.

1817, from the port of Baltimore. This cruize ter. minated at Buenos Ayres, where she was in part dismantled, some of her rigging and arms being deposited in a store ship which lay near her. The crew also were discharged. After lying in port four or five weeks, she sailed on her third cruize, having the same armament with which she sailed from Baltimore, and about twenty or thirty of the same crew. Her commander was changed, but was still a citizen of the United States; and she sailed under a commission from the Oriental Republic. On this cruize, the Monte Allegre was taken, and sent into the port of Baltimore; where she was libelled by the Consul General of Portugal. She was claimed by William Foster, the prize master, in behalf of the Oriental Republic, who alleged, that while she lay in the port of Buet os Ayres, she was purchased by the government of the Banda Oriental.

The reality of this sale constitutes the only question which can arise in this case.

* The testimony in support of it is found in the depositions of James Brown, James Williams, William Towson, and Alexander Towson. They mention the partial dismantling of the vessel, and speak of a report that she was sold, but they give no positive information on the subject, nor did they even hear to whom the sale was made. This testimony would weigh very little, were it even uncontradicted. But, the regular transmission of her prizes to Baltimore, her returning to that port, at the termination of her cruize, the depasitions taken to show that the original proprietors had not parted with their interest. Vol. VH.

66

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1822.

Crocket

Lce.

are proofs of a continuing American ownership, which are entirely conclusive. There can, then, be no doubt but that the captures made by the Fortuna are in violation of the laws of the United States, enacted for the preservation of our neutrality, and that they ought to be restored when brought within our territory.

The Rainha de los Anjos was a Portuguese vessel, captured by the La Fortuna, in the same cruize in which she captured the Monte Allegre. The cases are, in all material respects, the same.

Sentences affirmed with costs.

(Local Law. CAAVCERY.)

Crocket v. Lee.

SAME V. SAME.

.

A question on the validity of a certificate for a settlement right in

Kentucky, and of the entry thereof in the surveyor's office.
It is a settled rule, that the decree must conform to the allegations in

the pleadings, as well as to the proofs in the cause.
Therefore, when the question is on the validity of a location, and

neither its vagueness nor its certainty are distinctly put in issue by the pleadings, the testimony to that point will be disregarded by this Court; but if the merits appear to justify it, the cause will be remanded to the Court below, with directions to permit the pleadings to be amended.

Appeal from the Circuit Court of Kentucky,

1822.

These causes were argued by Mr Sheffey," for the appellant, and by Mr. Clay,' for the respondent.

Crocket

V. Lee.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

March 7th. These causes relate to the same title, and depend on the same question. It is the validity of a certificate for a settlement right granted to Angus Cameron, and of the entry thereof in the surveyor's office.

The certificate is in these words :

“ Angus Cameron this day claimed a settlement and pre-emption in the District of Kentucky, on account of residing in the country twelve months before the year 1778, lying at the head right hand fork of Welles' branch, extending south east to the head of a small run that empties into the north fork of Licking, including the spring on the head of both branches, about one and a half miles above the war path that crosses the north fork. Satisfactory proof being made to the Court, they are of opinion that the said Cameron has a right to a settlement of 400 acres of land, to include the above location, and the pre-emption of 1000 acres adjoining, and that a certificate issue accordingly.”

a Who cited Bodley. v. Taylor, 5 Cranch, 229. 6 Cranch, 148. 3 Cranch, 239. 2 Wheat. Rep. 144. 2 Bibb, 144. 1 Bibb, 72. 1 Wheat. Rep. 141. 1 Wheat. Rep. 130. 3''Bibb, 623. 5 Wheat. Rep. 116. 6 Wheat. Rep. 119. 1 Bibb, 228.

6 Who cited 1 Bibb, 10. 46. 34. 129. 136. 2 Bibb, 109. 114, 259. 476. 479. Hardię, 411.' 1 Maršh. Kent. Rep. 281. Print. Dec. 95. 3 Bibb, 148, 149. Wheat. Dig. Dec. tit. Local Law. XI.

1822.

Crocket

Lee.

The entry in the surveyor's office conforms to the location expressed in the certificate.

The right of Cameron, both to his settlement and pre-eniption, was regularly conveyed to the appellant, in whose name patents have been obtaived.

The appellee claims under junior entries, for which patents have been issued, younger than the appellant's patent on the pre-emption warrant, but elder than his patent on the settlernent right. The appelJant, therefore, filed his bill to obtain a conveyance for the land.covered by his settlement right, the legal title to which was in the appellee ; and the appellee filed his bill to obtain a conveyance for the land covered by the appellant's patent on the pre-emption right, to which he claimed the equitable title.

Pending the controversy, Lee purchased in the right of a person claiming under a patent older than either of those under wbich Crocket claimed; but as this patent was founded on a junior entry, the validity of Cameron's certificate, was still the question on which the whole case depended.

In the Circuit Court, Crocket's bill was dismissed ; and, in the other suit, he was decreed to convey to Lee the land contained in his patent for Cameron's settlement right. The decrees were founded entirely on the opinion that Cameron's location was too vague to be supported. In the Circuit Court, the cause turned almost entirely on this point, and the greater part of the testimony is taken with a view to it. If the validity of Cameron's location be sustained, Crocket must succeed, because his right is prior in time, and superior in dignity, to any title conflicting

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