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by public law. Sailing from Tobago for Curracoa, knowing Curraçox to be blockaded, would have incurred this risk, but sailing for that port, without such knowledge, did not incur it.
The underwriter had no objection to a voyage to Curraçoà, other than might arise from its being blockaded. The dangers of the blockade, therefore, were the particular dangers which induced the exception, and it seems to the court that the exception ought not to be extended beyond them. If this be correct, the circuit court committed no error in refusing to give the opinion which was required by the counsel on this point.
The sentence in this case is sufficiently authentieated to be received as evidence. Being a court acting under the law of nations, its proceedings may be proved according to the mode observed in the present case ; and were this doubtful, that doubt would be removed by the circumstance that it is the form stipulated by treaty.
The defendant is not at liberty to except to his own depositions, because he does not produce proof of his having given notice to the plaintiff. The admission of notice by the plaintiff is certainly sufficient, if notice to him was necessary, to enable him to use the defendant's deposition.
The fourth bill of exceptions depends on the principles stated by the court, in the first part of this opinion.
There is no error in the judgment of the circuit court, and it is affirmed, with costs.
OWINGS v. NORWOOD'S LESSEE..
In an action of ERROR to the court of appeals of Maryland, being tween two citi. the highest court of law and equity in that state, in zens of Mary: an action of ejectment brought by the defendant ufland in Ma against the plaintiff in error, both parties being citiryland, if the zens of Maryland, for a tract of land in Baltimore up an outstar! county, called " The Discovery,” being part of a tract ding title in & of land called Brown's Adventure, originally patented British subject for 1,000 acres to Thomas Brown, in the year 1695, tends is pro- who conveyed to John Gadsby, who conveyed to tected by the Aaron Rawlins in 1703, who mortgaged in fee to treaty, therefore the Jonathan Scarth, a London merchant, by deed of title is of the bargain and sale, in 1706, with a proviso to be void plaintif'; and
Thighest upon payment of 800l. sterling, with interest, on the state court in 13th of May, 1709. Scarth and his heirs were alcidez against wzys British subjects resident in England, and never the title thus wire in Maryland; but Scarth was charged with the sease in which quit-rents, in the Lord Proprietor's debt-books, up A writ of error to the time of the revolution. Rawlins, however, can lie to the by his will, in 1741, devised the land specifically to of the United some of his children, without taking any notice of States. the mortgage
In 1732, Littleton Waters attached, It is not “a arising
and obtained judgment of condemnation against the under a treu. land, for a debt due to him from Scarth, but never elary set must took out any execution upon the judgment; and by be restrained deed of lease and release assigned all his right in by the consti: the land to the Baltimore company, under whom the lition of the United States. plaintiff in error claims.
In October, 1794, Norwood obtained an escheat warrant to affect the tract called Brown's Adventure, upon suggestion of a defect of heirs of Brown, the original patentee. In June, 1800, he obtained a patent from the state founded upon the proceedings under that warrant, for 520 1-2 acres, being part of Brown's Adventure, with an addition of 26 acres of vacant land, and thereupon brought his action of ejectment against Owings. 'Upon the trial the original defend
ant, in order to show an existing title out of the Ow1X08, plaintiff
, contended that the mortgage to Scarth was Norwood's protected from confiscation by the British treaty of 1794, and was still a security for the money to the representatives of Scarth, who were proved to be still living in England..“ But the court were of opinion that on the expiration of the time limited in the mortgage for the payment of the money, a complete legal estate of inheritance vested in the mortgagee liable to confiscation; and was vested in the state by virtue of the act of confiscation of October session, 1780, C. 45. and the act of the same session, (C. 49.) (to uppoint commissioners.) subject to the right of redemption in the mortgagor and his heirs, and that the British treaty cannot operate to affect the plaintiff's right to recover in this ejectment.”
The verdict and judgment of the general court being affirmed in the court of appeals of Maryland, and being against the right claimed under the treaty, Owings sued out his writ of error under the provisions of the 25th section of the judicary act, vol. 1. p. 63. which enacts, that a final judgment in the highest court.of a state, in a suit " where is drawn in question the construction of any clause of a treaty, and the decision is against the right claimed under such clause of the treaty, may be re-examined and reversed or affirmed in the supreme court of the. United States."
Harper, for the plaintiff in error.
The question in this case is, whether Scarth's interest in the land was protected by the treaty of peace with Great Britain. By the 5th article of tha treaty “it is agreed that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights." The case of Higginson and Mein, decided by this court, (ante, vol. 4. p. 415.) was, in substance, the same as this. In both, the time of payment had passed before the confiscation; and the legal estate
was in a British subject. The court in that case de Non world's cided that the confiscation did not destroy the lien
which the British creditor had in the land under the mortgage.
LIVINGSTON, J. Could the mortgagot, sixty or seventy years after the time of payment, maintain a bill to redeem ?
Harper. The mortgagee never was in possession of the land; the lapse of time, therefore, would rather operate as a bar to foreclosure than redemption.
By the act of assembly of Maryland, passed at October session, 1780, c. 45. and c. 49. all the property in that state belonging to British subjects, except debts. was confiscated and vested in the 'state, without inquest of office, or entry, or any other act to be done. The statute operated a complete change of property and possession.
This was not at that time a debt due to Scarth. Nearly a century had elapsed since the mortgage was forfeited. There was no covenant in the mortgage for payment of the money; no bond taken, or other evidence of a debt. Rawlins never took any measures to redeem, but abandoned the pledge, as an absolute sale. It is a general principle in equity thai the mortgagor shall not redeem if the mortgegee has been in possession twenty years after forfeiture of the mortgage. It was not necessary for Scarth to file a' bill to foreclose; because the right to redeem was barred by his twenty years' possession. If Rawlins could not have redeemed in 1780, the estate was absolute in Scarth, and the confiscation was complete. There is no case in England, or Maryland, where the mortgagor has been permitted to redeem after twenty years, if no interest has been paid, or account kepi between the parties. Pow. on Mort. 152. 3 P. Wms: 287. 2 Alk. 496. 2 Vern.
418. 3 Bac. Abr. 655. i P. Wms. 272. 15 Vin. OWINGS
LESSEL. But if Scarth's heirs might avail themselves of the treaty, it is not competent for a third person to set it up. Or if it is, it will not give this court .jurisdiction.
Johnson, Attorney-General of Maryland, on the same side
If the judgment below be not against a right claimed under the treaty, if it be not a case arising under the treaty, this court has no jurisdiction.
In this case Owings claims no right under the treaty, Scarth's right, whatever it may be, is not affected by the decision of this case. It is he only who could claim the benefit of the treaty. But he is not a party in the suit. It is, therefore, not a case arising under the treaty,
MARSHALL, Ch. J. There are only two points in this case.
1. Whether Scarth had such an interest as was protected by the treaty; and,
2. Whether the present case be a case arising under a treaty, within the meaning of the constitu. tion.
This court has no doubt upon either point.
The interest by debt intended to be protected by the treaty, must be an interest holden as a security for money at the time of the treaty; and the debt must still remain due.
The 25th section of the judiciary act must be restrained by the constitution, the words of which are, “ all cases arising under treaties.” The plaintiff in error does not contend that his right grows out of