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{Concluded from our last.)
Suffolk, Jf.
Supreme Judicial Court , August Term , 1/99
DERBY vs. BLAKE.
It furthermore appeared in evidence,
that on the 12th of February aforcfaid, the
said J. and Williamson and the eontrac
! C *' n ß l ,arties » aniong whom were Judd and
i . Wells, (who names were now inserted in
| v the contrast in the place of Derby’s) met
!'* together for the pnrpofe of completing the
I T business, hut for home reason, which did
| v not particularly appear at trial, the bufi-
J,'/ neL was postponed by consent of Jackion
fl and Williamson, and by vote of the pur
l'! chasers, from the said 12th to 13th of said
1 j month, each party agreeing, verbally, to
ii. take no exception to the delay. On the
6) 13th, the parties reaflcmbled, the blank
fpaccs of the deed were filled up; and a
arifing as to the efficacy of a deed
thus interpolated, it was agreed, that the
fame, together with all the securities to be
given for the land, ffiould be sealed up
ami deposited with a third person, as es-
I 1 crows to take effect on certain conditions,
and that in the mean time said J. and
Jiamfon fliould procure a new, or confirm
ation deed, so called, which was accord
1, ■ ingly procured some months afterwards,
and that together with the former or in
terpolated deed was fubfcquently delivered
to, and accepted by the purchasers; and at
the fame time the securities were given to
[? J. and Williamfon,as had been flipulated.
It also appeared at the trial, that on the
said 13th February, 1796, the Legislature
of Georgia parted an aft declaring their
former grant of the land in question, to
the Georgia Miffiflippi Company, and oth
ers, to be unconftitutiotial and void, sug
gesting that said grant had been obtained
by gross fraud and collusion. By this aft
the lands aforefaid are declared to be Bill
the property of that state, and the money
that had been paid for the fame, viz.
«;co,ooo dollars, ordered to be returned to
the persons from whom it was received.—
The Repealing Aft furthermore direfted
all the records of the grant in queffion, to
be publicly burnt, prohibited the registry
of any deed of document relative to the
premises, and declares all power and future
r ? grants, contrasts, and agreements founded
on the original grant of the former legisla
ture, to be illegal, and ipso fafto, void. In
conformity to the direftions in this aft, all
S the records and documents of the original
| ! > grant aforefaid, were burnt, and that from
that time to the present, it has beenimpos
siblc to procure the registry in Georgia, of
any deed or document founded in the same.
.It however appeared in evidence, that the
sakl Judd and Wells have uniformity recog
nized the purchase under the contrast of
the 26th Jnnury, no other or different*
contrast ever having existed on the sub-
I , jest: that subsequent to the said 12th. Feb.
they paid Jackl’on and Williamson, for
the two (hares of Derby, and have fub
feribed all the papers and* agreements, down
to February, 1798, that have been execu
ted among the purchasers, in order to or
ganize and form themselves into a Compa
ny of Allociatcs.
On the foregoing fafts, a defence was
flrenuoufly urged by Mr. G. Blake, on the
following grounds, viz.
Firii—That the contrast of Jackfonand
Williamson, of the 26th January was in
contemplation of law dillolved, and that
therefore the contingence had happened,
upon which, by Derby’s argument, the
notes in question were to irfeome void,
I t and delivered up to the defendant.
Secondly—That The consideration for I
which the notes were indorfed, had whol
ly failed.
Thirdly—That the plaintiff ought to
have tried the validity of the notes, by a
in it against Jtrdd and Wells, before he
| could resort to the defendant for payment.
With refpeft to the firft point, it was
infilled for defendant, that the failure to
; deliver a good and fufticient deed on the
,i2ih February, whereby the purchasers
were relealed from the neceftity of taking
it afterwards, amounted to a ditfolution of
the contrast of the 26th January, within
the spirit and meaning of Derby’s agree
ment. —But it was furthermore contended,
p that although contraft might not have
P been diflblved by any aft or omiflion of
| \ the parties, still it was rendered void and
nugatory by operation of law—The inter-
I j pointed deed of the 18th February, being
considered of no validity, fliould as was
I | said, be wholly laid out of thecaufe, how-
If ever the nature and effect of it might have
been originally misapprehended by the par
ij' ties; and therefore that the subsequent
deed of confirmation, as it was called, mud
§ be considered tiie only foundation of the
K I purchaser’s title—Here it was argued that
this latter deed, being executed in Geor
t gia, by citizens of that (late, long after the
enaftion of the repealing aft before refer
-1 red to was against law and Consequently
lit ipso fafto void—Tuat admitting the ori-
I ginal grant of the Georgia Miffiflippi Com-
I pany, to have been good and fair, and
If therefore that the Rate of Georgia could
1 by no aft of their Legislature revoke or
destroy it, still they had the power of ren
dering illegal and void, any contrasts or
conveyances which their own citizens
might afterwards be difpoied to make re
lative to lands lying within their own jn
rifdiftion. On this ground it, was argued.
that Jackson and Williamson had not pro
cured a legal conveyance, in conformity
to their contrast, and therefore it was dif
folvcd, and the notes consequently be
come void.
As to the second point, want of consi
deration, the effeft and operation of the re
pealing aft, were more particularly consi
dered—Here it was flrenuoufly infilled for
the defendant, that if on the foregoing
principles, the deed, eventually procured
by Jackson and Williamson, be considered
a nulity, then every promise of contrast
predicated thereon, however distant from
the original negotiation, mufl be taken for
a mere nudum paefum, and therefore not
maintainable by law—But as to the parti
cular bargain between the present plaintiff
and defendant, it was furthermore con
tended, that whatever might be the legal
consequences of the repealing aft, either
in refpeft to the original grant of Georgia,
or the subsequent deed procured by Jack
son and Williamson, still that the only ob
jeft ever contemplated by the parties in
this suit had been thereby totally defeated
—Derby fold his chance of profit only, in
consideration of u'hich the note in ques
tion \Vas endorsed, now this chance of pro
fit it was said, had been annihilated, long
before the execution of Jackson and Wil
liamson’s contrast, if that contrast, in faft,
ever was executed at all—Here the coun
sel for defendant attempted to illustrate the
principal contended for, by putting among
others the following example, viz.—The
Legislature of Maflachufetts, pass an aft
for the institution of a lottery, and appoint
truflees to fell the tickets.—A. purchases
a ticket, promises to pay the eftabliflied
price, fay, five dollars.—B. purchases the
fame ticket of A. and aflume to pay to the
tru flees the price originally agreed to be
given by A. for the fame, and also to pay
A. five dollars for the bargain. It after
wards appears, that at the time the bar
gain between A. and.B. happened, and
without their knowledge, the fame legisla
ture had repealed the aft on which the lot
tery was founded, declaring the fame to
have been fraudulently attained—prevent
the trustees from proceeding to draw the
lottery, and order a return of the purchase
money to the holders of ticket—By these
means the chance of a prize, which was
the only consideration for the five dollars
agreed to be paid by B.having been defeat
ed ; it was said aflumfit would not lie a
gainst him for the recovery.—So on this
ground it was urged that though the real
title of the original grantees of the land in
question, might not be effefted by the re
pealing law , still that the sovereign power
of a state within whose jurifdiftion the
lands he had by a Jolemn uncontrolable aft,
effeftually destroyed the chance of profits
contemplated by the present parties, by
foreclofing the purchasers from any possi
ble use of their property.
But on the other hand, Mr. Lowell, for
the plaintiff, contended, and was support
ed by the clear and decided opinion of the
court —First—That the contrast of the
26th January, though not carried into com
plete execution on the 12th February, as
flipulated, still was not diflblved, accord
ing to the spirit and intention of Derby’s
agreement. That however the case might
be considered with refpeft to third persons,
it could not be competent for Judd and
Wells, who were parties to the contrast
and had virtually aflented to the delays
and modifications attending its execution,
afterwards to avail themselves of a non
performance on the part of Jackson and
Williamson of the original stipulations
Whatever objections might have been
within the power of Judd and Wells, on
the 12th February, they had effeftually
waved the privilege of recurring to them,
by their acceptance of the last deed, and
by various other afts, which clearly de
monstrate their constant acquiescence in
the bargain. It was also decidedly the
opinion of the court, that the bargain with
Jackson and Williamson, had not been le
gally affefted by the repealing aft of Geor
gia—that aft they considered a mere nul
lity—as a flagrant, outrageous violation of
the firft and fundamental principles of so
cial compafts. The idea of a legislature
reclaiming property they had once fold,
and been paid for, was said by the Court
to be not less preposterous, than for an in
dividual to repeal his own note of hand,
or to render void by his own aft and de
termination, any contrast, however sacred
or fiolemn. The vociferations of the
Georgia legislature, who were the very
granters of the property in question, a
bout fraud and circumvention, could not
be admitted in a Judiciary of Mafiachu
letts, as evidence of the real •existence of
fucti faftb—Whether the original grants
of the Georgia Legislature were valid or
not, was considered by the court a cause
of judicial, and not of iegiflative cogniz
ance. riie repealing aft of Georgia was
moreover declared void, becanfe it was
considered direftiy repugnant to article ift,
fee. io, of the United States constitution,
which provides that “no state shall pass
any expofifafto laiv, or law impairing the
obligation of contracts.” On this ground,
the court exprefled a clear and decided
opinion, that the right the state of Georgia,
at the time of their grant, held to the terri
tory in dispute, had been fairly and legal
ly conveyed to the purchasers, under Jack
son and Williamson—that the note in liti
gation was therefore endorsed lor a good
and valuable confutation, which had not
failed. The jury were of the fame opin
ion, and pronounced a verdidt against the
defendant.
CONSTANTINOPLE, June 20.
The Ex-Pacha of Egypt, Seid Ali, who
has received two wounds in the battle with
Buonaparte, is arrived here from Aleppo.
Having loft the best part of his effects at
Cairo, the Grand Signior has not only
made him valuable presents, but made him
also a Pacha of three tails and with the ti
tle of-Pacha General of Egypt.
BRUNN, July 24.
According to the last letters from Sem
lin, there are about 1,637,000 bales of cot
ton in the Imperial magazines, and in
Belgrade. They are distressed for ware
house-room, and expert that the prices,
from this unusual quantity will materially
decline.
PARIS, June 22.
A terrible fire reduced to allies, on the
19th of June, Saint-Claude, one of the
molt populous towns in the Department
of Jura ; not a single house was left Band
ing. More than 3000 inhabitants are re
duced to the extremest misery.
Several booksellers of Paris have declar
ed themselves Bankrupts.
NEW-YORK, Oftober 27.
It is rumored that Porcupine is about
establishing his press in this city, in conse
quence of the profpefl of Judge M‘Kean’s
being elefted Governor of Pennfvlvania.
Oitober 28.
James Wefcott, editor of the Times, a
jacobin paper printed in Alexandria, is
prosecuted for publishing a libel against
Mr. Dularfy.
GEORGETOWN, (M.) Oftober 29.
The Militia, at least of some parts of
South-Carolina, are acquiring military
(kill and rendering themselves of real value
for the field of war. In the county of Ab
beville, in the upper county of that state,
reviews were held in September last. Two
regiments (each of whom brought on pa
rade about 600 men) and three troops of
cavalrv, were reviewed. It is said, that
the military ardor which pervaded every
rank both of officers and men, their atten
tion to orders, and the promptness and
alacrity with which the several evolutions
were performed, would do credit to regu
lar troops. Must not this fpe&acle have
formed aftriking contrast to that which is
exhibited on such occasions in some other
dates ?
The late militia law of Maryland appears
to have had considerable effe«ft in procur
ing attendance at trainings; and in the
city of Baltimore a high degree of milita
ry difeipline has for some time distinguish
ed their militia corps. But to other parts
of the state may not this enquiry be ad
dressed ? Where is that ambition, that (kill
and difeipline which charafterife real (ol
diers, and destitute of which an army is
without power or utility?
BALTIMORE, Oftober 30.
Account of the loss of the follower Violet.
The schooner Violet of Baltimore, John
Convay matter, left Cape Henry on the
25th of Augnft, 1799, bound'to the Weft-
Indies. On the 31st inst. at 2 o’clock,
A. M. in lat. 27, 30, long. 62, 20, was
overfet by a violent water (pout and in a
few minutes filled with water, the crew
amounting to twelve in number got on
her fide which remained about three feet
out of water. We continued in this situ
ation till 6 o’clock P. M. the fame day—
during which time we rigged our boat
which was sixteen feet long and 4 feet
wide; our main hatch burfted open by
which means we got one barrel of flour
andi4ba(kets of cordial containing each
one gallon; finding it impoflible to get a
ny thing more from the wreck, which
dill continued to fettle—we embarked in
our boat without quadrant or compass to
direct our course. We went on allow
ance of one gill of cordial per day, and as
much flour as it would wet; the firft fix
days we (haped our course to the S. W.
keeping our oars going all the time, tgl our
men were quite exhausted, on the 7th Sep
tember took the trade winds and fleered to
W. S. W. on the 12th inftant,xlied James
Montgomery, his last words were water;
we went on one half of our former allow
ance ; on the 13th inst. died John Brown
and John Campbell, whole expiring
• words were for water and exhibited a hor
rid fpcaacle to the (Wvivin* W
hourly expeded to lliare rh P r, *
This day our cordial gave over
our exhausted spirits with it n
inft.at 6A. ft. to our £ '<«■
and fatistadion, discovered aft,; 6 ■> J|
ing calm we repaired to our i **Ǥ
ture was too far exhausted but f &ilt «
ly we were discovered from the W
they immediately sent their boar r"‘ P atll ß
fiftance and towed us along fid e . • ° UriL ■!
ed his majesty (hip Carnatic of ’J Pr ° T ‘BI
Commodore Loring. Being then;
24, 00, long. 73, 20 , and by a “ ? lj, B
computation failed nearly 700 miles ?' I
the humane and hospitable treatme r B
experienced from capt. Lorin* „J* { 1
and ships crew which they f 0 la’vi(hi *2l
bestowed on us, my heart is grateful' j ■
fliail always retain the lasting s ense f e I
of their goodness and humanity; they’**
only supplied us with every thingour * "? ■
state required, but generously s ub f c -T* ■
500 dollars to supply our distressed fea, r 1 I
with clothes, and to pay their pa( r acr . ■
home, as none of them was able to dodii I
JOHN CONWAY. ' I
HERA L 5! ~~ I
AU G U
WEDNESD ay, November JOj I?9g< I
The Legijlature at their present Seffien, havt I
appointed the following State Officers : ■
James Jackson, Esquire, re-elefted I
Governor. ■
John- Berrien, Esquire, re-elefted 1
Treasurer. I
Horatio Marbury, Esquire, Seen. I
tary of State, in the room of John Milton, I
Elquire, resigned, and I
Daniel Sturges, Esquire, re-elefted I
Surveyor-general. 1
CONJECTURE on the fubjed of
the departure of the American Envoys for
France, appears to have given way to cer
tainty, and we have confidence in afluring
our readers that on the 19th Odober, Mr.
Ellsworth left Trenton for Newport,
and Mr. Davie on the 22d, and immedi
ately on their arrival, it was expeded the
United States Frigate would fail with them
for Havre. It was at firft contemplated
to fail diredly for the Hague, and then ar
range the mode of proceeding with Mr.
Murray, but the invafi©© ©/Hot'and by
the British has occasioned an alteration.
THE President of the United
States we understand, contemplates re
monstrating to the British government on
the fubjed of the many injuries and in
sults offered to the American ships and
seamen—a dispassionate examination we
trust will terminate to mutual fatisfadion
—we would be unwilling to believe that
the continuation of villainous condud to
wards our nautical citizens, had the sanc
tion of a government which profeffed for
us a friendfhip—but at the fame time we
would gladly fee our country progress to
wards a situation of ability to punish those
ads of atrocity for which redress is often
fought in vain.
TO place confidence in national prs
feffions is childish weakness—National
friendfhip is an ignis fatuus —a show with
out substance—it has no lolidity—in fad
it exits not —a nation to be refpeded must
be in a situation to do itfelf justice. We
again repeat what we have before asserted,
that regardless of foreign powers, and un
influenced by foreign attachments or pre
judices, our objed fliould be to establish
and peimenently maintain a national, an
American character.
THE interior situation of France ap
pears not to change for the better—and it
would almciftbe incredible to fay it chang
ed for the worse—the change is however
from bad to bad—the government have
loft confidence in the people, and the peo
ple in the government; the day we hope of
regeneration will arrive when a deluded
people will return to the paths of reason, to
the lweets of rational religion —and the
security of virtuous government.
IN August last, an infurredion broke
out at Chartres, a town 45 miles s. w. of
Paris, and tis said the constituted autho
rities were all massacred, the diredory sent
a force, to reduce the revolters to order.
THE Legislature of this state are
now in feifion, the appointments made by