1821.

Kerr

Watts.

yond the record for the evidence on which the deduction of title was sustained.

Although we entertain no doubt, that exhibits may, on the trial, be proved by parol testimony, yet a note on the minutes, or on the exhibit, became indispensable to transmit the fact to this Court; and as the case furnishes no such memorandum, we must consider the assignments through which Watts derived his title from O'Neal, as not having been established by evidence. Such was the decision of this Court in the case of Drummond v. M'Gruder.

But Kerr is the only one of these appellants who has expressly put the complainant on proof of his title. The rest of the appellants having passed over this subject without any notice in their answer, the question is, whether they waived their right to call for evidence to prove these exhibits. We are of opinion they have not; and that the complainant is always bound to prove his title, unless it be admitted by the answer.

There are two principles of a more general nature, of which all the appellants claim the benefit, and which, as the cause must go back, will require consideration.

It is contended, that Nathaniel Massie was the acknowledged agent of both O'Neal and Watts, and that the complainant is precluded by his acts doue in that capacity. This argument is resorted to, as well to fasten on Watts the survey made in his behalf above the town of Chilicothe, as a relinquishment of all claim to a location at the place now contended for in his behalf. But in neither of these views

can this Court apply this principle in favour of the defendants; for, it follows from the principles established for surveying O'Neal's entry, that the survey made by Massie on O'Neal's entry, was illegal and void; and, certainly, when employed in locating the entries made in favour of Powell and himself, Massie was not acting as the agent of O'Neal or Watts, but as the agent of Powell, or, in fact, in his own behalf. The survey, on which this argument rests, was at best but partial; and it is conclusive against it to observe, that the powers of Massie, as agent of Watts, were limited to the entry and mechanical acts of the survey. The recording of that survey, and all those solemn acts which give it legal validity, it does not appear that his powers extended to. Watts never recognised that survey, or assumed the obligatory effects of it by any act of his own, and in fact, in the event, (though not a material circumstance to the result we come to,) it has since been ascertained that it was not only made off Watts's entry, but on land appropriated by another.

the

1821.

Kerr

V.

Watts.

military

of Virginia,

fect of a res ju

dicata.

But it has been contended, also, that all these sur- Surveys under veys actually made on the military land warrants of land warrants Virginia, derive the authenticity and force of judicial have not the ef acts, or of acts done by the general agents of the continental officers respectively, from the superintending and controlling powers vested in the deputations of officers, as the law denominates them, appointed by themselves to superintend the appropriation of the military reserves set apart for their use. It is to be presumed, it is contended, that every survey made by their authorized surveyors, was

1821.

Kerr

V.

Watts.

made under their control and direction. This Court does not feel itself authorized to raise any such presumption. The powers actually exercised by those commissioners, were limited to very few objects. The surveying of entries at a very early period, became a judicial subject. And the commissioners, or rather deputations of officers, never assumed a right to adjust the conflicting interests of individuals upon the locating and surveying of such entries. To appoint surveyors, to superintend and direct the drawing of lots for precedence among the locators, to direct the survey for officers and soldiers not present or not represented, and to determine when the good lands between the Cumberland and Tennessee should be exhausted, comprehended all the powers with which they were vested. As individual agents capable of binding their principals, they appear in one case, and only one, which was, when the officer or soldier was absent and unrepresented. And as to judicial powers, there is no provision of the act that vests them with a semblance of such a power, unless it be to judge of the right of priority as determined by lot. But here, also, they appear more properly in the character of ministerial officers discharging a duty without the least latitude of judgment or discretion. Their powers in nothing resemble that of the Courts of Commissioners established through the back counties of Virginia. As to the subjects submitted to the boards so constituted, (of which military warrants were no part,) those boards were expressly vested with judicial power. But the powers of the deputations of officers were purely ministerial.

And if it be admitted, that they might have exercised the power of defining the principles on which surveys should have been made, yet it is certainly incumbent on him who would avail himself of that power, to show that it was exercised, and to bring himself within the rules prescribed by their authority.

Decree reversed as to these appellants, and sent back for further proceedings.

1821.

565

Leeds

V.

The Mariné
Ins. Co.

(CHANCERY.)

LEEDS et al. v. THE MARINE INSURANCE

COMPANY.

Application of the law of set-off and lien in Equity, under peculiar circumstances.

APPEAL from the Circuit Court for the District of Columbia.

This was a suit in Equity, commenced in the Court below by the respondents against the appellants, in which the injunction obtained on the filing of the bill was made perpetual. The facts are stated in the opinion of the Court."

This cause was argued by Mr. Swann and Mr. Jones for the appellant, and by the Attorney-General and Mr. Lee for the respondents.

1821.

Leeds

V.

The Marine

Mr. Justice JOHNSON delivered the opinion of the Court.

This case involves a great many questions both of Ins. Co. law and fact, but we will consider it as it is affected March 16th. by those circumstances, concerning which there is no dispute.

Leeds and Straas being engaged in commercial enterprizes, Straas employed Hodgson to effect insurance on the Sophia and her cargo. A note of Hodgson, with Patton and Dykes as endorsers, is taken for the premium. Another adventure on the brig Hope, grows out of the first, on the Sophia; and the same agent, at the request of the same principal, effects insurance upon this also, with the same Company. The Sophia arrives in safety, but though one of the endorsers is unquestionably sufficient, the premium note remains unpaid. The Hope is lost, and Hodgson professedly suing for the use of Straas and Leeds, has recovered judgment against the underwriters for the amount of the policy. From this amount the premium note connected with that policy was discounted, but that growing out of the insurance on the Sophia, was not pleaded, notwithstanding the identity of the legal plaintiff in that action, with the debtor to the company in the transaction on the Sophia.

The note taken for the insurance on the Sophia, is now set up against the policy on the Hope, in a different form. This bill is filed to compel the parties in interest, Hodgson, Leeds and Straas, to discount it from the judgment against the underwriters. The equity of this demand is now to be tested.