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8. AULD.

The undivided interest of Thomas West, which descended on him, at the death of Mrs. Bronaugh, is 166 2-3 acres; and the undivided interest which descended on him, at the death of Francina Turner, is 41 1-3 acres; making 208 acres, to which Hepburn and Dundas have, at this time, no title.

The omission to record the deed from Thomas West is not cured ; and this court is now to decide whether, under these circumstances, Hepburn and Dundas are entitled to claim a specific performance.

Had there been siinply a deficiency of 208 acres, the majority of the court would have considered it as a case for compensation; or had the parties entitled to this land been before the court, a division might possibly have been directed, and compensation for that quantity ordered : but, however this might be, as persons not before the court hold this interest, no order can be made respecting it; and it may very much embartass those acts for asserting the title which may possibly be necessary. The part actually conveyed by Thomas West, too, never having been confirmed by a deed from himself or his heirs, properly recorded, might impose on Colin Auld the necessity of bringing a suit in chancery to perfect his title; or of being subjected to the in. conveniences constantly attending the establishment of a deed not recorded, and the risks inseparable from such a decd.

This, therefore, is thought by a majority of the court to be a case not proper for a specific performance; and the bill is to be dismissed.

LIVINGSTON, J. expressed his non-concurrence in the reasoning of the court, in the latter part of the opinion just delivered by the chief justice. He would dismiss the bill, cven if a good title could now be given by the complainants. This court can no more dispense with punctuality as to time, in any case, than with any other part of the


agreement. But in this particular case, time was of HEPBURN the essence of the contract. The object was pay.

AULD. ment of a debt; and from the anxiety of the defendant to resist a decree 'for a conveyance, and the desire of the complainants to urge it upon him, it is to be presumed that the 'lands have fallen in value during this delay of the title. The remedy dy a decree for a specific performance is a departure from common law, and ought to be granted only in cases where the party who seeks it has strictly entitled himself to it. It is said that by the English authorities, the lapse of time may be disregarded in equity, in decreeing a specific execution of a contract for land. But there is a vast difference between contracts for land in that country and in this. There the lands have a known, fixed, and stable value. Here the price is continually fluctuating and uncertain. Å single day often makes a great difference; and in almost every case time is a very material circumstance.

He dissented also from another part of the opinion, which intimates that if this were simply a deficiency of a few hundred acres, it would be considered as a case of compensation. This part of the opinion does not scem to be necessary, and does not affect the present case; but this court can in no case compel a specific performance on terms and condi. tions. We cannot decree a special, execution for part, and assess damages as to the residue.

This is like a contract for 5,000 bushels of wheat. A tender of 4,500 would not be good; and we could not compel the purchaser to take a less quantity than he contracted for. So here the contract was for 6,000 acres. The complainants have a title to a part only; we could not compel the defendant to take that part, and give him damages for the non-conveyance of the residue.

Johnson, J. observed, that he had perhaps taken a peculiar view of this subject, but he should be in favour of decrceing a specific performance gene


HBPBURN rally; leaving Auld to his remedy upon the warranty

of the complainants for any defect of title which might appear. Auld, perhaps, thought it would be a good speculation, and had stipulated for a general warranty

He acquiesced, however, in dismissing the bill, because he considered the judgment in the action at law brought by Auld against the complainants, as equivalent to a decree for a specific execution of the agreement, inasmuch as it prevents him from obtaining satisfaction in any other way for the sum awarded.

MARSHALL, Ch. J. declared the opinion of the court, in the action at law, tu be, that the tender of the assignment of Graham's contract, and the power of attorney, was good as pleaded, and that Auld ought to have accepted it.

Judgment reversed.


tan se

It is not a ERROR to the district court for the Ķentucky ground for a writ of error

district. that the judge below refused

In the court below, the judge at the trial rejected to reinstate a

after certain testimony which was offered by the attorney nonsuit.

for the United States, who thereupon took a bill of exceptions, and became nonsuit, and afterwards, at the same term, moved the court to set aside the nonsuit and grant a new trial, upon the ground that the judge had erred in rejecting the testimony. But the court overruled the motion, and refused a new trial; whereupon the attorney for the United States sued out his writ of error.

The case was submitted by the Attorney-General and Roman, without argument.

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MARSHALL, Ch. J. delivered the opinion of the Tus U. S. court, that in such a case, where there has been a

Evan's. nonsuit, and a motion to reinstate overruled, the court could not interfere.

Judgment affirmed.



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the sentence of condemna

THIS was an appeal from the sentence of the In admiralty circuit court for the district of Maryland, which cases, condemned the schooner General Pinkney and car- the

peal suspends go, for breach of the act of congress prohibiting altogether; intercourse with certain ports of the island of St. is to be heard Domingo ; passed February, 28th 1806. Vol. 8. p. in the appel 11. This act was limited to one year; but by the act of late court as if February 24th, 1807, it was continued until the end had been pro of the then next session of congress, when it nounced.

If the law expired on the 26th of April, 1808.

under which The schooner General Pinkney, on the 23d of tion was proAugust, 1806, was cleared from Alexandria for nounced be me St. Jago de Cuba with a cargo, but went to Cape sentence

pealed after François in the island of St.

Domingo, one of the the court beprohibited ports. On her return, she was seized fore final sen. on the 17th of November, 1806, and libelled on tence in the the 5th of January, 1807, and condemned in the appellate district court on the 23d of July following, which tence of coocondemnation was affirmed in the circuit court on the 7th of November, from which sentence the ced; claimants immediately appealed, in open court, to some

special the supreme court of the United States, then next made for that to be holden on the first Monday of February, 1808, purpose, dy where the cause was continued until the present term.

Vol. V.


court, DO ded

demnation can







YRATON The only question now argued was, whether The US.

this court could now affirm the sentence of condemnation, inasmuch as che law which created the forfeiture, and authorized the condemnation, had expired?

G. Lee, Martin, Harper and Youngs, for the appellents, contended that, in all cases of admiralty and maritime jurisdiction, an appeal suspeo s entirely the sentence appealed from; and that in the appellate court- the cause stands as if no sentence had been pronounced. 1 Browne's Civil Law, 495. 501. 1 Br. Parl. Cas. 70. 590. Rocafort v. Nugent. 2 Domat, 686. 2 Browne's Civil Law, 436, 437. 3 Dall. 87. 114. 118. Penhallow v. Doune. Crunch, 2. Jennings v. Cursun. Id. 443. United States v. The Bessey & Charlotte. Purker, 72.

If then the case stands as if no sentence of condemnation has been passed, the question arises, can this court now proceed to condemn the vessel when there is no law authorizing a condemna. tion?

The act of congress makes no provision for the re, covery (after the expiration of the act) of penalties or forfeitures which had been incurred under that act during its existence.

And in such cases the law has always been understood to be, that the penalty or forfeiture cannot be enforced, nor the punishment inflicted.

The court has no longer any jurisdiction in the case. 2 East's Cr. Luw, 576. Jones's case. i W. Bl. 451. Milier's case. 4 Dal. 373. 1 Hale, 291. The'caso of the United States v. The cargo of the ship Sophie Musdalena, before Judge Davis, at Boston, and a like case before Judge Hall, at New Orleans. 1 Crunch, 103. United States v. Schooner Peggy,

Rodney, Attorney-General, on the part of the United States, is not ontrovert the principles contended for on the other side, but in addition to the

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