The United States v. Castillero. signed by the secretary of the department. Certain other documents were also introduced, to which it will be necessary to refer, as a part of the proceedings that led to the grant. Islands situated on the coast, it seems, were never granted by the governors of California or any of her authorities, under the colonization law of 1824, or the regulations of 1828. From all that has been exhibited in cases of this description, the better opinion is, that the power to grant the lands of the islands was neither claimed nor exercised by the authorities of the department prior to the twentieth day of July, 1838, as was satisfactorily shown in one or more cases heretofore considered and decided by this court. On that day, the minister of the interior, by the order of the Mexican president, addressed a communication to Governor Alvarado, authorizing him, in concurrence with the departmental assembly, to grant and distribute the lands of the desert islands adjacent to that department to the citizens of the nation who migh: solicit the same. That dispatch bears date at a period [* 466] when the president was in the exercise of *extraordinary powers, and was issued, as appears by recitals, with a view to promote the settlement of the unoccupied islands on the coast, and to prevent those exposed positions from becoming places of rendezvous and shelter for foreign adventurers, who might desire to invade that remote department. Grants made by the governor, under the power conferred by that dispatch, without the concurrence of the departmental assembly, were simply void, for the reason that the power, being a special one, could only be exercised in the manner therein prescribed. It was so held by this court in United States v. Osio, decided at the present term, and we are satisfied that the decision was correct. But the grant in this case was not made under the general authority conferred by that dispatch. In addition to what was exhibited in the former case, it now appears that another dispatch of a special character was addressed by the same cabinet minister to the governor on the same day. Like the other, it bears date at the city of Mexico, on the twentieth day of July, 1838, and is signed by the minister of the interior. By the terms of the communication, the governor is informed that the president, regarding the services rendered by this claimant to the nation and to that department as worthy of great consideration and full recompense, has directed the minister to recommend strongly to the governor and the departmental assembly that one of the islands, such as the claimant might select, near where he ought to reside with the troops under his command, be assigned to him, before they proceed to The United States v. Castillero. grant and distribute such lands, under the general authority conferred by the previous dispatch. Beyond question, the legal effect of that second communication was to withdraw such one of the islands as should thus be selected by the claimant from the operation of the previous order, and to direct that it be assigned to this claimant, His attorney, accordingly, on the fifth day of March, 1839, presented his petition to the governor, asking for a grant of the island of Santa Catalina, which is situated in front of the roadstead of San Pedro, and requested that the expediente might pass through the usual forms. * In conformity to the prayer of the petition, the governor, [* 467] on the same day, made a decree that a title of concession should issue, and that the expediente should be perfected in the usual way. Accompanying the order of concession there is also a form of a grant of the island to the claimant; but it is without any signatures, and does not appear ever to have been completed. On the seventeenth day of March, 1839, his attorney in fact presented another petition to the governor, asking for a grant of the island of Santa Cruz, which, as he represents, is situated in front of Santa Barbara, on the coast of that department. Both of these petitions are based upon the special dispatch addressed to the governor; and in the one last presented, the claimant represents that the island previously offered is wholly unfit either for agricultural improvement or the raising of stock, and for that reason prays, in effect, that the order of concession may be so changed as to conform to his last-mentioned request. For aught that appears to the contrary, his request was acceded to without hesitation, for, on the twenty-second day of May, 1839, the governor made the grant, basing it upon the special dispatch referred to in the petition. To prove the authenticity of the dispatch and the genuineness of the grant, the petitioner called and examined Governor Alvarado. He testified that he was acquainted with the handwriting of Joaquin Pesado, the minister of the interior, and also with that of Manuel Jimeno, the secretary of the department, who countersigned the grant. Both of these signatures, as well as his own, he testified were genuine; and he also stated that he recognized the document as a genuine instrument, and intended it at the time as a perfect and complete title in the claimant. His testimony finds support in this case, to some extent, by the fact that all the documentary evidences of title, including the grant, were found in the Mexican archives; but much stronger confirmation of his statements is de The United States v. Castillero. rived from the record evidence which those archives are found to contain. At the argument, we were very properly furnished by the counsel of the appellants with a copy of an index of conces[* 468] *sions, prepared by the secretary of the department. That index covers the period from the tenth day of May, 1833, to the twenty-fourth day of December, 1844. It contains a list of four hundred and forty-three concessions, and among the number is the one set up by the claimant in this case. Its description in the index corresponds in all particulars with the grant produced, except as to the date. As there given, it is dated the fifth day of March, 1839, which is the true date of the concession, under the first petition. Considering that the name of the grantee and the description of the premises agree with the grant produced in the case, we think it a reasonable presumption that the error of date is in the index, and not in the grant. For these reasons, we think the genuineness of the documentary evidence of title is satisfactorily proved. Having come to this conclusion, the only remaining question is, whether the grant was made by competent authority. Direction was given to the governor and the departmental assembly in the special dispatch on which this grant was issued, that one of the islands, situated along the coast of the department, should be assigned to this claimant before they proceeded to grant and distribute such lands under the general order. Those communications were of the same date; but it is obvious, from the language of the special dispatch, that it was issued subsequently to the other communication, and must be regarded as qualifying the latter, so far as their terms are repugnant. Had the claimant petitioned for a grant of this description, under the general order, his application would have been addressed to the discretion of the governor and of the departmental assembly; and unless both had concurred in granting the prayer, his application would have been defeated, for the reason that such a title. could only be adjudicated by their concurrent action. Power to refuse such applications was vested in the assembly as well as in the governor; but when both concurred, and the adjudication had been made, the title papers were properly to be issued by the governor as an executive act. As the assembly was a constituent part of the granting power under the general order, it was [*469] doubtless thought proper that the withdrawal of * one of the islands from its operation, and the disposal of it in another way, should be notified to the assembly as well as to the governor. They were accordingly directed not to proceed to make Very v. Watkins. adjudications under that order until the assignment of the title to this claimant was perfected, but they were not required to make the assignment or to cause it to be made. To accomplish that purpose, and carry into effect the command of the president, two things only were necessary to be done: one was to be performed by the claimant, and the other was a mere ministerial act. It was the claimant who was to make the selection; and if it was a proper one, near the place where he was stationed with his troops, nothing remained to be done but to make the assignment as described in the dispatch. Emanating as the dispatch did from the supreme - power of the nation, it operated of itself to adjudicate the title. to the claimant, leaving no discretion to be exercised by the authorities of the department. Neither the governor nor the assembly, nor both combined, could withhold the grant, after a proper selection, without disobeying the express command of the supreme government. Nothing therefore remained to be done, after the selection by the claimant, but to issue the title papers, and that was the proper duty of the governor, as the executive organ of the department. No doubt appears to have been entertained of the justice of the claim, either by the commissioners or the district court; and in view of all the circumstances, we think their respective decisions were correct. The decree of the district court is therefore affirmed. MARTIN VERY, Plaintiff in Error, v. GEORGE C. WATKINS. 23 H. 469. EVIDENCE-DECLARATIONS OF CO-SURETY-PRACTICE IN EQUITY. 1. The declarations of one of the co-sureties in a bond, who is dead, is not evidence against the other in a suit on the bond. Nor is his statement in writing evidence against his co-surety. 2. A levy on personal property is not necessarily void, because the officer does not take manual possession of it. He has the right to deposit goods with a receptor, and he may leave it, if he chooses, in the custody of the party who had possession when the levy was made. 3. When property held by a receiver pendente lite is by decree of the court vested in one of the parties to the suit, his title to it is perfect, and it is liable as other property to be levied on by execution for his debts. 4. But the receiver can only be held liable for not delivering to the successful party in the decree when a copy of that decree is produced to him, and a receipt tendered, accompanying the demand for delivery. Such a course is not a mere form. It is proper to prevent future litigation. WRIT of error to the circuit court for the district of Arkansas. The case is very fully stated in the opinion. Very v. Watkins. Mr. Stillwell, for plaintiff in error. Mr. Watkins, for defendant. [* 470 ] * Mr. Justice WAYNE delivered the opinion of the court. On the 3d March, 1841, at Little Rock, Arkansas, one James Levy gave his obligation with a mortgage for $4,000, with interest, due six years after date, to one Darwin Lindsley, who soon after assigned the obligation to Martin Very, the plaintiff in error. In March, 1843, Levy paid to Very $2,000, and at the same time executed a promise, in writing, to pay the residue of the debt in jewelry and other wares, which Very agreed to receive in payment, to be selected within a year from that time, from Levy's stock of goods. Very refused to perform the agreement, and in 1848 brought an action on the original obligation, to which Levy pleaded the agreement by way of accord and satisfaction, with an offer to perform on his part. The supreme court of Arkan[* 471] sas, on an appeal, held it to be in equity* a clear accord and satisfaction, upon a good consideration, because the creditor by that arrangement received payment of nearly half of the debt in advance, and because the residue was to be paid almost four years before the debt became due. In the meantime, Very brought a bill to foreclose the mortgage in the circuit court of the United States for the district of Arkansas, to which Levy set up the same defense by way of answer. In April term, 1850, the court sustained the defense of Levy, and decided that Very should select from the stock of goods in question a sufficient amount according to their value, on the 3d March, 1844, to satisfy the rest of the debt. It then became necessary to appoint a receiver in the cause. John M. Ross was appointed receiver, and gave a bond, with E. Cummins and George C. Watkins as securities, in the penal sum of $5,000, with the condition that he would faithfully discharge his duties as receiver, with respect to such goods as might be brought into court, and that he would carefully keep and dispose of them in conform ty with such order and decree as the court might make in that suit. In consequence of Very's refusal to abide by his agreement, Levy was obliged to keep his stock of goods on hand to tender them to Very, according to the agreement. But Levy had other creditors, who seized upon the same goods in execution, and they were in possession of the sheriff when Ross was made receiver, and from the sheriff he received them. The next step was an order from the district judge, directing Very to select from a box of jewelry in the hands of the receiver such an amount, according to the value of the |