Doe v. Eslava
50 U.S. 421 (1850)

Annotate this Case

U.S. Supreme Court

Doe v. Eslava, 50 U.S. 9 How. 421 421 (1850)

Doe v. Eslava

50 U.S. (9 How.) 421

Syllabus

There were two conflicting claims to land in that part of Louisiana west of the Perdido River, one founded upon a French grant in 1757, with possession continuing down to 1787, the other founded upon a Spanish grant in 1788, with possession continuing down to 1819.

Both these claims were confirmed by Congress.

In an ejectment suit where the titles were in conflict, the state court instructed the jury that the confirmations balanced each other, and they must look to other evidences of title in order to settle the rights of the parties.

The judgment of the court being ultimately in favor of the party who claimed under the Spanish grant, this Court will not, under the circumstances of the case, disturb that judgment.

The fifth section of the Act of Congress passed on 8 May, 1822, giving certain powers to the registers and receivers of the land office, did not confer upon them the power of finally adjudicating titles to land.

This was an ejectment brought in April, 1838, in the Circuit Court for Mobile County and State of Alabama by the heirs of Robert Farmer against Miguel D. Eslava, the Mayor and Aldermen of the City of Mobile, and Joseph Clemens. Eslava afterwards obtained leave to sever in his plea, and thenceforward this suit was carried on against him alone.

The action was brought to recover the following lot of ground in the City of Mobile, viz.:

"Beginning at a post on the line of the claim of William McVoy, at the distance of twenty-four feet north of the northeast angle of Government Street and Emanuel Street; running thence north sixty-nine degrees east with the line of McVoy, eighty-nine feet seven inches, to a stake, the southeast angle of a brick cotton shed, bearing north seventeen degrees west, distant forty-two feet one inch; thence north seventeen degrees forty minutes west, two hundred and twenty-four feet, to the south boundary of the bakehouse lot; thence with said south boundary, south seventy-five degrees fifteen minutes west, eighty-nine feet six inches, to the east boundary of Emanuel Street; thence with said street, south seventeen degrees forty minutes east, two hundred and thirty-four feet, to the place of beginning; containing twenty thousand four hundred and ninety-five superficial feet, with the appurtenances."

Instead of giving a chronological narrative of the events connected

Page 50 U. S. 422

with the titles of the plaintiff and defendant, it will best place them before the reader to trace out each title separately.

In May, 1846, the cause came on for trial, when the parties exhibited the following deeds and papers in support of their respective claims.

The title of the plaintiff was as follows:

1. A patent issued on 19 April, 1759, at New Orleans, by Louis de Kerline, Chevalier of the royal and military Order of St. Louis, captain of a vessel of his Majesty and Governor of the Province of Louisiana, and John Baptiste Claude Bobe de Cloreaux, Counselor of the King in his Council, Commissary of the Marine, Ordinator in the said Province, to Mr. Grondel. The patent was for a piece of land near the place of the new quarters at Mobile called the direction fronting the fort, consisting of about fourteen toises of front upon the esplanade, of the depth which remains of the establishment of the King's bakehouse (boulangerie du roi).

2. Mesne conveyances from Grondel to Robert Farmer.

3. That Farmer was a major in the British army and lived in Mobile, and that when the Spaniards took possession under the treaty which followed upon the close of the war of the American Revolution, Farmer's house was burned and his family moved away to some other residence.

4. After the acquisition and reduction into possession of this country by the United States, Congress passed an act upon 25 April, 1812, appointing a commissioner to investigate the claims to land within it, whose report was to be laid before Congress. In January, 1814, the report of the commissioner, Mr. Crawford, was laid before Congress. 3 Am.State Papers, 6, tit. "Public Lands." This claim appears in the report, but the abstracts show no evidence of inhabitation or cultivation, and the recommendation was that those claims only should be confirmed in which this proof was made. 3 Am.State Papers 32.

On 3 March, 1819, Congress passed an act confirming certain claims and organizing a board of commissioners, consisting of the register and receiver, to receive evidence of "all grants, orders of survey &c., derived from the French, British, and Spanish governments," and the commissioners were empowered "to inquire into the justice and validity of the claims," and in every case to ascertain the facts relative to their inhabitation and cultivation, and the nature of the survey, if any, abstracts of which evidence were to be reported to the Secretary of the Treasury, to be by him laid before Congress.

Page 50 U. S. 423

In June, 1820, the claim was presented by Louis de Vobiscey, who had married one of the daughters of Farmer, in the following manner.

"To the Register and Receiver of Public Moneys, acting as commissioners of Land Claims at Jackson Courthouse, Mississippi."

"Gentlemen -- You are hereby notified that the following claims of the heirs of Robert Farmer are now revived, and additional evidence offered in support thereof, to-wit: a lot in the City of Mobile, situate opposite to Fort Charlotte and running fourteen toises eighty-four feet front on Government Street and running back to the public bakehouse about three hundred feet, which said lot was granted by the French government, by patent bearing date 19 April, 1757, to Mr. Grondel, who, by deed bearing date 22 August, 1757, sold it to Bertrand Guichandene, who, by deed of sale bearing date 18 March, 1759, sold it to Count Pascher, by whom, by deed, lost by time or accident, it was transferred to Robert Farmer, who, according to the evidence hereto annexed, inhabited the same upwards of twenty years, and which is now in my possession in right of the heirs of said Farmer. A translation of the patent is recorded in book C, page 1842, in the books of the former commissioner, but no conveyances under said patent. Therefore I respectfully request that the said papers herewith filed may be recorded in the order in which they are now presented."

"LOUIS G. DE VOBISCEY"

At the same time, the depositions of Mrs. Bennett and John Baptiste Trainer were filed, showing that Farmer lived on the lot for twenty years; that, on the taking of the town by the Spaniards, the house was burned, and the family moved away.

Upon this evidence, the commissioners made the following report.

"Register of Evidence collected in Relation to Lots in the Town of Mobile"

"No. 27. By whom claimed, Heirs of Robert Farmer. Original claimant, Grondel. Nature of claim, and from what authority derived, French patent. Date of claim, 19 April, 1757. Quantity front, in feet, ___; 84 deep; area in feet, ___. Where situated, Government Street. By whom issued, French government. Cultivation and inhabitation: a house

Page 50 U. S. 424

built, in which R. Farmer lived for twenty years, and until the Spaniards took possession of the country."

"Land Office, Jackson Courthouse, July 11, 1820."

"W. BARTON, Reg."

"WM. BARNETT, Rec'r"

"Attest:"

"JOHN ELLIOTT, Clerk"

On 8 May, 1822, Congress passed an act entitled

"An act confirming claims to lots in the Town of Mobile and to land in the former Province of West Florida which claims have been reported favorably on by the commissioners appointed by the United States."

Under this act, the following proceedings were had by the commissioners, William Crawford, and W. Barton, and William Barnett, register and receiver.

"Transcript from the Register of Certificates granted for Claims to Lots in the Town of Mobile, in the District of Jackson Courthouse, Mississippi, contained in Report No. 7 of the Register and Receiver on the Town Lots, and confirmed by virtue of the Act of Congress passed 8 May, 1822, entitled 'An act confirming Claims to Lots in the Town of Mobile,' &c."

"Number of certificate, 15. Number of claim, 27. Number of report, 7. Present claimants, Heirs of Robert Farmer. Original claimant, Grondel. Nature of claim, French patent. Quantity conferred, front _____, 84 deep, area _____. Where situated, Government Street, Town of Mobile."

"Register's Department, Land Office, Jackson Courthouse, Mississippi, January 1, 1823."

"W. BARTON, Agent"

"Register of Locations issued for confirmed Claims to"

"Lots in the City of Mobile"

"Date of warrant, 15 November, 1827. Number of warrant, 401. Number of certificate, 15. Number of claim, 27. Number of report, 17. Quantity, _____. Claimant, Heirs of Farmer. Where situated, in Mobile. By whom located, _____. In what manner located, _____. In conformity to the extract of title attached, say 14 toises front, running to the lot of the bakehouse, formerly known to be the King's Bakehouse."

5. The plaintiff's next evidence in the chain of title was a patent or quitclaim from the United States, which was as follows:

Page 50 U. S. 425

"The United States of America, to all to whom these presents shall come, greeting: "

"Whereas there has been deposited in the General Land Office a certificate No. 15 of the register and receiver of the land office at St. Stephen's, with a plat of survey of the lot of land therein mentioned, under the provisions of the act of Congress approved on 8 May, 1822, entitled"

"An act confirming claims to lots in the Town of Mobile, and to land in the former Province of West Florida, which claims have been reported favorably on by the commissioners appointed by the United States,"

"as the claim of the heirs of Robert Farmer, in right of Philip Gonjon de Grondel, numbered twenty-seven, in abstract numbered seven of the register and receiver, and as being bounded and described as follows, to-wit, beginning at a post on the line of the claim of William McVoy, at the distance of twenty-four feet north of the northeast angle of Government Street and Emanuel Street; running thence north sixty-nine degrees east with the line of McVoy, eighty-nine feet seven inches, to a stake, the southeast angle of a brick cotton shed, bearing north seventeen degrees west, distant forty-two feet one inch; thence north seventeen degrees forty minutes west, two hundred and twenty-four feet, to the south boundary of the bakehouse lot; thence with said south boundary, south seventy-five degrees fifteen minutes west, eighty-nine feet six inches, to the east boundary of Emanuel Street; thence with said street, south seventeen degrees forty minutes east, two hundred and thirty-four feet, to the place of beginning; containing twenty-thousand four hundred and ninety-five superficial feet, English measure, and being a lot in the City of Mobile, in the State of Alabama, in township four south, of range one west, in the district of lands subject to sale at St. Stephen's, Alabama:"

"Now know ye that the United States of America, in consideration of the premises and in conformity with the said act of Congress, have remised, released, and forever quitclaimed and by these presents do remise, release, and forever quitclaim unto the said heirs of Robert Farmer, and to their heirs, the said land above described, subject to any just claim or claims to all and every part thereof, of all and every person or persons, bodies politic or corporate, derived from the United States or from either the British, French, or Spanish authorities, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, subject to any such just claim or claims as aforesaid, unto them, the said heirs of Robert Farmer, and to their heirs and assigns forever, so that neither the

Page 50 U. S. 426

United States, [n]or any other person claiming under them, except as is provided in said act and the reservation aforesaid, may or can set up any right or title thereto."

"In testimony whereof, I, Martin Van Buren, President of the United States of America, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed."

"Given under my hand, at the City of Washington, 14 November in the year of our Lord 1837, and of the independence of the United States the sixty-second."

"MARTIN VAN BUREN"

"by A. VAN BUREN, Secretary"

"By the President:"

"JOSEPH S. WILSON"

"Acting Recorder of Gen. Land Office, ad.in."

6. The last evidence in the chain of the plaintiff's title was proof that the lessors of the plaintiff were the heirs of R. Farmer.

Defendant's Title

The defendant then offered in evidence the following, viz.: :

"1. To his Excellency Stephen Meiro, Colonel of the Royal Armies, Political and Military governor of the City of New Orleans and Province of Louisiana &c."

"Elizabeth Fonnerette, an inhabitant within the jurisdiction of Mobile, with due respect prays your Excellency and says that there is in this town a lot of ground, containing ten toises in breadth by twenty-six toises in length, situate on Government Street, opposite the house and lot of Anthony Narbonne, formerly belonging to Mr. Farmer, which lot has not until the present time been claimed by the proprietor or by any agent in his behalf. In consideration of all which, your petitioner humbly hopes, from the goodness of your Excellency, that you will be pleased to grant her the lot above described, and to order the necessary titles to be issued from the secretary's office of this government; wherefore your petitioner entreats your Excellency may be pleased to grant the lot prayed for, and, in so doing, your petitioner shall record many thanks. Mobile, 15 February, 1788."

"[Signed] ELIZABETH FONNERETTE"

"I, Viginti Folch, Captain of the Regiment of Louisiana infantry, Political and Military Commandant of the Town of Mobile and its district &c., do hereby certify that from the information

Page 50 U. S. 427

which I have received from various inhabitants of this place, it appears that the facts stated by the petitioner are correct and true. Mobile, March 1, 1788."

"The Commandant of Mobile will put the petitioner in possession of the lot of ground for which she solicits a grant, at the spot described in the preceding memorial, provided the same is vacant, and without causing injury to a third person. Let the proceedings of the survey be made out in connection herewith by the surveyor of the province to be transmitted to me in order to provide the petitioner with the corresponding title in form."

"[Signed] STEPHEN MEIRO [ SEAL]"

"2. A deed from Elizabeth Fonnerette to Fontanella, in 1798."

"3. A deed from Fontanella to Orsono, in 1801."

"4. A deed from Orsono to Eslava, in 1802."

The plaintiff objected to Nos. 1, 2, and 3, that they had never been presented to the board of commissioners, and that they therefore could not be read in evidence, which objection was overruled, and the plaintiff excepted.

The plaintiff also objected to Nos. 1, 2, and 3, because they were mere copies from the book of Spanish records, and the originals not even accounted for.

To No. 4 the plaintiff objected because the paper offered was a mere certified copy from the land office, and did not purport to convey any title to the premises; which objection was overruled, and the said papers, Nos. 1, 2, 3, and 4, were read, and the plaintiff excepted. The conveyance signed by Orsono was produced.

5. It has been already mentioned, that, on 25 April, 1812, Congress passed an act appointing a commissioner to investigate and report upon such claims. The next step in the defendant's title was the following evidence of the presentation of the defendant's title before the commissioner in 1814.

"To the Commissioner of Land Claims east of Pearl River."

"Sir -- Please take notice, I claim a lot and house by virtue of a bill of sale to me by Joaquin de Orsono, Captain of the Louisiana Regiment of Infantry, Civil and Military Commandant of Mobile, dated the 20 June, 1802."

"KENNEDY & OSBORN"

"Attorneys and Agents for Don Miguel Eslava"

"Louisiana, East of Pearl River, May 24, 1814"

"Know all men by these presents, that I, Don Joaquin de

Page 50 U. S. 428

Orsono, Captain of the Regiment of Infantry of Louisiana, Commandant Civil and Military of this Town of Mobile, declare to have sold to Don Miguel Eslava the house pertaining to me, wherein I dwell, upon the lot of ground that I bought of Don Francis Fontanella, and built at my own expense, the which I concede to him, free from all encumbrance, for the sum of two thousand dollars, which I have received down, to my full satisfaction, in virtue of which I yield the right of action and ownership that to the said house I had and held, and cede and transfer the whole to the purchaser, who his right shall have, that as his own he may sell or transfer it at his pleasure, without any person opposing his determination, and that it may thus be evident at all times, and for the time being, I make him another sale of the same tract, and sign the present for his security, in the afore Town of Mobile, 30 June, 1802."

"By duplicate,"

"JOAQUIN DE ORSONO"

"Test: "

"THOMAS PRICE"

"CAYETANO PEREZ"

The commissioner, Mr. Crawford, made the following report upon this claim.

"Report No. 11"

"Register of claims to land in the district east of Pearl River, in Louisiana, founded on private conveyances which have passed through the office of the commandant, but founded, as the claimant supposes, on grants lost by time or accident. No. 79. By whom claimed, Miguel Eslava. Original claimant, Joaquin de Orsono. Quantity claimed in feet unknown. Where situated, Mobile. Cultivation and inhabitation, 1800 to 1814. Remarks: Most of those claims of Eslava were purchased at public auction."

"WILLIAM CRAWFORD, Commissioner"

"Remarks. Though the original grants upon which the preceding claims are founded have been lost, yet it is conceived that the claims to such lots as were inhabited and cultivated under the Spanish government, or such as were built upon by permission of the Spanish authorities, ought to be confirmed."

"WILLIAM CRAWFORD, Commissioner"

It has been previously stated that on 3 March, 1819, Congress passed an act organizing a board of commissioners consisting of the register and receiver to receive evidence of

Page 50 U. S. 429

grants, and to report to Congress. Under this act, the following proceedings took place.

6. A survey, under the following order:

"Register of Locations issued for Confirmed Claims to Lots in the City of Mobile."

"Date of warrant, 10 November, 1827. Number of warrant, 413. Number of certificate, 74. Number of claim, 79. Number of report, 11. Quantity claimed, _____. Claimant, Miguel Eslava. Where located, Mobile. By whom located, _____. In what manner located, 7,200 square feet, including the original buildings."

"Surveyor's Office"

"Land District East of the Island of New Orleans"

"In conformity with a certificate, No. 4, warrant No. 235, claim No. 79, report No. 11, from the board of commissioners at Jackson Courthouse, I have surveyed for Don Miguel Eslava a lot of ground within the City of Mobile, in township No. 4, range No. 1, west of the basis meridian, bounded as follows: beginning at the northwest angle of Government and St. Manuel Streets, and extending northward, on St. Manuel Street, two hundred and twenty-six feet, and eastward, on Government Street, one hundred and twelve feet. The copy of the conveyance attached to the warrant calls for one hundred and fourteen feet front on Government Street, but it could not be found without interfering with Joyce's Duplantines lot, containing 25,312 superficial feet of Parisian measure and having such shape, form, and marks as are represented in the above description."

"The 29th day of October, 1823."

"SILAS DINSMORE"

"Principal Deputy Surveyor"

This survey was objected to as evidence, as no warrant or order of survey was shown, nor any confirmation authorizing the same; which objection was overruled, and the plaintiff excepted.

7. The defendant then offered the following patent certificate:

"Land Office, Jackson Courthouse"

"3d September, 1824"

"In pursuance of an act of Congress passed on 8 May, 1822, entitled 'An act confirming claims to lots in the Town of Mobile,' &c., we hereby certify, that the claim of

Page 50 U. S. 430

Miguel Eslava, original claimant Joaquin de Orsono, No. 79, in the report of the commissioners, No. 11, has been confirmed under the said act, and that, on 29 October, 1823, the said claim was regularly surveyed, containing 25,312 superficial feet, of Parisian measure, and designated as a lot of ground within the City of Mobile, in township No. 4, range No. 1, west of the basis meridian, bounded and described as per plat, herewith authenticated by Silas Dinsmore, principal deputy surveyor for the said district."

"Now therefore, be it known that on the presentation of this certificate to the Commissioner of the General Land Office, the said Miguel Eslava shall be entitled to receive a patent for the above-described lot."

"WM. HOWZE, Register"

"G. B. DAMEROU, Receiver"

The defendant then proved that the signatures to the patent certificate and the certificate of survey were genuine, and that the officers were at the date thereof such as they purport. This the plaintiff objected to because not sufficiently authenticated, and for the reasons stated in the objections to the survey. The defendant then offered a report from the land office favorable to his claim, marked No. 7. The claim is found in American State Papers, Vol. III.

The defendant also read the Act of Congress of 1822, confirming this claim, and also the act of 1819.

The defendant offered evidence going to prove that Fontanella was in possession of the premises, or a portion of them, in 1801 or 1802, that Orsono afterwards had possession, and built a house thereon, and that, after the date of the bill of sale to Eslava, he Eslava exercised acts of ownership over it in making repairs, receiving rent &c.

That Eslava, on his purchase, obtained the possession, and held it till Vobiscey entered, in 1819; that he rented it out to divers persons; that Vobiscey entered while it was rented by Eslava to a tenant named Ward.

In reply to this, the plaintiff offered evidence to show that one De Vobiscey, who had married one of the heirs of Farmer in the year 1818 or 1819, took possession peaceably of the said premises, claiming to enter in the assertion of said Farmer's title, and that from that time to the present the said claim has been before the courts of Alabama, as will be seen in the reports of the cases in 2 Stewart 115, and 3 Stewart & Porter and 7 Alabama Reports.

The defendant then, to rebut this possession, produced to

Page 50 U. S. 431

the court certified copies of the proceedings against De Vobiscey, marked 8, to show their character, and that De Vobiscey was turned out of possession.

8. The defendant then referred to the original Spanish document set forth under the fifth head of his defense. It was the document signed by Orsono, and in the connection was the proof that Fontanella had been in possession, and had enclosed the lot; that he had sold it to Orsono, who built a house upon the lot; that Eslava, the father of defendant, had been in the receipt of rent during the Spanish times from about the time the deed bears date; that he had claimed, and the property had been esteemed as his; that the government of the United States had paid rent to him, for the use made of it by General Wilkinson after the change of flag; that he rented it to other persons, and the property was in his possession until he was interrupted by De Vobiscey in 1819; that in the latter part of 1819 De Vobiscey entered, and Eslava brought a writ of forcible entry, and recovered possession and retained it till 1821, when the judgment was revoked and a writ of restitution awarded; that afterwards another writ of forcible entry was brought by Eslava against De Vobiscey, and in 1822 a recovery was had and possession recovered; that this possession was retained till the year 1826, when this judgment was revoked, and a writ of restitution awarded; and Hallett, claiming to hold De Vobiscey's title, entered, and the proceedings in an action to try titles on the same day were commenced, and a recovery had, with damages; and a writ of restitution was executed under the judgment of the supreme court, referred to in the reports of that case.

The documents five and six were offered together, and the genuineness of the signatures was proved, and the fact that the officers held the appointments specified at the time they bear date.

The report of this claim, and the confirmation of the government, was also read to the jury. The evidence shows that the heirs of Robert Farmer left this country, and that, during the Spanish times and until the return of De Vobiscey, none was known or heard of in the Province of West Florida as claimants of this lot.

It was in evidence that Orsono, at the time of the deed to him and from him to Eslava was the Spanish commandant at Mobile.

Before the jury retired from the bar to consider of their verdict, the court charged them as follows:

That, in considering this case, they were not to regard the title from the United

Page 50 U. S. 432

States to either party, as both were confirmed equally, and the confirmations balanced each other, and, to decide the controversy, the jury must look to the other evidences of title. The court further instructed the jury that if they believed the defendant Eslava, and those under whom he claimed had been in possession more than twenty years before the suit was brought under claim of title, it would be sufficient for his defense, and that the conveyances produced would be sufficient to connect the different possessions together. The court further instructed the jury that, the conveyance to Mrs. Fonnerette being shown, if no adverse or other possession appeared and no reason to the contrary was shown in evidence and the possession was found in her vendee, they would be authorized to presume, if they thought proper, that she was in possession under the concession.

The court further charged that if they believed that the plaintiff had been out of possession since the death of Farmer and until the year 1819, though De Vobiscey had then entered, yet if he was dispossessed by Eslava by recovering at law with damages, having been out of possession such length of time, his entry was that of a trespasser, and his possession would not prevent the statute of limitations from continuing to run on account of Eslava, he having been restored by competent tribunals.

Before the jury retired to consult on their verdict, the counsel for the plaintiff requested the court to charge the jury as follows:

That in this state, the jury would not be authorized to presume a grant in favor of a direct adverse possession short of thirty years.

That the title of defendant, before confirmation, was a mere equity, and this is not of that character of color of title which would support an adverse possession.

That in order to sustain the defense under the statute of limitations, there must be twenty years' actual, uninterrupted, adverse possession, and this possession must be clearly defined, which the court charged, but added that the jury might infer the possession, if they pleased, from the transmission of title from Fonnerette to Fontanella and from Fontanella to Orsono and to this defendant.

That the proper concession to Mrs. Fonnerette, her deed to Fontanella, and his deed to Orsono, cannot be received by the jury as evidence of title, so as to connect the defendant's title under his confirmation with them, nor can they look to them as evidence of sales, nor as proof of the consideration, nor as proof of the boundaries claimed.

Page 50 U. S. 433

That if the jury find that De Vobiscey entered upon the premises in 1818 or 1819, with intent to claim, and did claim, in right of his wife as one of the heirs of Farmer, and held possession under said title during those portions of time he was successful in litigation, this interrupted the possession, and in order to sustain a title under the statute there must be proof of a clear adverse possession of twenty years prior to the time of the interruption, which the court refused, and the court charged that De Vobiscey was a trespasser.

That neither under the claim of Mrs. Fonnerette nor under the act of Congress can the defendant claim more than sixty feet front, and that the survey produced by the defendant cannot control this.

That if defendant has put in a plea for eighty-four feet, and shows title for but sixty feet, without designating the precise location of the sixty, the plaintiff must recover. That the paper title produced by the plaintiff is better than the paper title of the defendant.

That the act of 1822, confirming defendant's title, relates only to the title as presented to the commissioners, to-wit the deed from Orsono in 1802, while the same act confirms the title of plaintiff, which relates back to the patent of 1757.

That the legal construction of the bill of sale from Orsono to Eslava gives to Eslava no right to the land in controversy.

That if the defendant claims under the title of Mrs. Fonnerette, he cannot acquire by the statute of limitations more than the title calls for, which is sixty feet front.

To all of which charges and refusals to charge by the court the plaintiff by his counsel excepts and prays that his bill of exceptions may be signed and sealed by the court, which is done accordingly in term time.

The jury, under these instructions, found a verdict for the defendant, and the case was carried to the Supreme Court of Alabama. Before it came on for trial, the record was amended as follows.

"In Ejectment"

"JOHN DOE, ex dem. of FARMER'S HEIRS, v. M. D. ESLAVA"

"I, Augustus Brooks, clerk of the circuit court for the county and state aforesaid, do hereby certify that it is stated in the original bill of exceptions in this case that every charge requested by the plaintiff's counsel of the court therein set forth was refused, which statement ought to appear in the transcript of the record, as it is a part of the record, but was

Page 50 U. S. 434

omitted through mistake to be inserted in the transcript made out in the case and sent to the supreme court."

"In testimony whereof, I have hereunto set my hand and affixed the seal of said court, this 30 May in the year 1846."

"[SEAL] A. BROOKS, Clerk"

"This record is amended by consent in this: that it is agreed there is an omission in the bill of exceptions to state that the charges asked for and appearing in this record by the plaintiff below were refused by the court, and excepted to by the plaintiff."

"Tuscaloosa, 4 June, 1846."

"GEORGE N. STEWART"

"Attorney for Def't in Error"

In April, 1847, the cause came on for argument, when the Supreme Court of Alabama affirmed the judgment of the court below. The plaintiff sued out a writ of error, and brought the case up to this Court.

Page 50 U. S. 443

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