Index to Ninth Volume. error not embraced in the bill of exceptions, or not properly assigned requires a strong case, and one showing that it will be manifestly against right to permit the judgment to stand. 2. The act of 1852-'3 (Pamp. Laws, 100,) makes it the duty of the Supreme Court to review the rulings of the Circuit Court upon motions for new trials. Bridier vs. Yulee, 481. 3. Where the record fails to show that a final judgment had been entered in the court below, the appeal will be dismissed. Watson vs. Savell, 506. 4. The Supreme Court will not consent to sit as an arbitrator between the parties to a cause brought up by appeal or writ of error. Pearce & Son vs. Jordan, 526. TREATY WITH SPAIN 1. The 8th Article of the Treaty of February 22d, 1819, between the United States and Spain, by which the Floridas were acquired, must be construed to stipulate expressly for the security to private property, which the laws and usages of nations would, without express stipulation, have conferred. as 2. The operation of the said treaty as a confirmation, is the same upon a purchase of land of the Spanish Government, before the date fixed in the treaty, upon a grant made by the Spanish authorities previous to that time, which is to confirm such grant or purchase "in presenti," and the language of the Spanish side or Spanish copy of the treaty, is substantially adopted as the true reading, viz: that such grants "shall stand or remain ratified and con firmed," &c. 3. Under the said treaty, it was not contemplated that the Government of the United States should convey titles upon purchases made of Spain before 24th January, 1818, but only that the United States after a change of dominion, should respect such purchases as were made of the Spanish government before that time, and ratify and confirm the right which had, before that time been acquired of the Spanish government. 4. The report and abstract or decision of the Board of Land Commissioners, appointed under the act of Congress, approved May 8th, 1822, entitled "An act for ascertaining claims and titles to lands within the Territory of Florida," in regard to claims and titles to lands in Florida, whether under grants from the Spanish government or by purchase from said government, are not final and cannot have the force of res adjudicata, nor deprive them of any right which they may have had previous to said report and abstract or Index to Ninth Volume. decision. That the object for which these commissioners were appointed was to enable the government to ascertain the Spanish grants and sales,and their location, so that they might be separated from the public domain, and not sold as public lands. That for this purpose they "constituted a board of inquiry, not a court exercising judicial power and deciding finally on titles." As to "Donation" claims-Quere? 5. It is inconsistent with all the acts of Congress and of our courts, in adjusting land titles derived from the Spanish Government in Florida, prior to the date fixed by the treaty, to construe said acts in confirmation as a grant de novo. 6. The act of Congress, approved March 3, 1839. entitled "An Act for the relier of the heirs and assignees of Peter Alba,deceased," (and made part of the special verdict in this case,) is confirmatory of the preexisting title of Peter Alba, Jr., ratifying and confirming the same, as by the treaty stipulation the government was bound to do; and by the "relinquishment of any title which the United States may have to said lots," in said act, Congress but authorizes the separation of the land from the public domain, in order that they may not be sold as public lands and therefore is not, to any intents and purposes, a grant de novo. McGee et als. vs. Doe ex dem. Alba., 382. 1. A trust, in its strict and technical sense, is known only in equity, and so long as it subsists it cannot be reached, as between trustee and cestui que trust, by the statute of limitations. 2. To exempt a trust from the bar of the statute, it must be, first, a direct trust; second, it must be of a kind belonging exclusively to the jurisdiction of a Court of Equity, and, third, the question must arise between the trustee and the cestui que trust. 3. Property devised in trust after payment of debts, is assets in the hands of an administrator, with the will annexed, for which the sureties on his bond are liable. 4. The Trustee cannot get possession of such property, except through the administrator, and therefore may sue him and his sureties for it; and such suit may be brought without any order having been made by the Judge of Probate. Woodfin et als. vs. McNeal et al., 256. 5. B,without any writing whatever, but verbally and by word of mouth only, assigned, transferred and delivered to three of his creditors, constituting the firm of C. M. & Co., a package containing notes, drafts, &c., for near $30, Index to Ninth Volume. 000, in trust, to collect and distribute the proceeds, as far as they would go, pro rata, between the assignees and his other "Charleston creditors," making no conditions or reservations in his own favor: Held, that this assignment was valid and irrevocable from the time of its acceptance by the assignees; that the privity or consent of the creditors was not necessary; that such assent will be presumed until the contrary appears. Matilda Brown vs. Chamberlain, Milor & Co., 364. VENIRE (See Jury,) 216. VENUE 1. Upon a change of venue in a criminal case, the transmission of the copy of proceedings, including the order for change of venue, accompanied with the original indictment and other necessary papers mentioned in the order (if any) of the court, prima facie satisfies the statute. 2. The making of the order changing the venue in such a case and adjourning the court without revoking it,vested,eo instanti, jurisdiction in the Circuit Court of the county to which the cause is forwarded. The jurisdiction cannot be in abeyance. 3. In all criminal cases, whether upon a change of venue or otherwise, the trial should be upon the original indictment, unless by some express act the court is authorized to use a copy thereof. 4. When the venue in a criminal case has been changed, the prisoner may raise the question of the sufficiency of the transcript from the court in which the indictment was found, and may require the production of all necessary papers not sent forward, and should not be forced to trial without them. 5. If a prisoner go to trial in such a case on an imperfect transcript, without objection, he waives all right to object in arrest, of judgment. Ammons vs. The State, 530. VERDICT- 1. When the verdict was simply "guilty," and there was but one count in the indictment, and that was for murder, although the jury under this count might have found the prisoner guilty of manslaughter, yet having found him guilty generally,itmust be taken as referring to the offence in the indictment. 2. If the evidence in a case be so conclusive that the jury could not have found any other verdict than that which they did find, the court should not set aside such verdict on the ground of irreguarity in the conduct of one or more of the jurors, unless such irregularity be gross. O'Connor vs. the State, 216. Index to Ninth Volume. 3. A verdict will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done although there may appear to have been a PREPONDERANCE of evidence against the verdict. 4. As a general rule, if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted. Gaines vs. Forcheimer & Brothers, 265. 5. By making an act of Congress part of a special verdict of a jury (particularly where no objection to its admissibility in evidence appears in the record) the court will consider that the jury found all the facts stated and set forth in said act, whether the same were stated by way of inducement or otherwise. McGee et als. vs. Doe ex dem. Alba, 382. 6. Where the record shows that there was a total absence of evidence to support the verdict, the Supreme Court will not hesitate to set the verdict aside; but where there is conflicting evidence, the preponderance against the propriety of the verdict must be very strong to induce the court to interefre. Bridier vs. Yulee, 481. WARRANTY 1. A right of action on a warranty of soundness contained in a bill of sale of a slave (said warranty not containing a promise to the assigns or order of the purchaser or to bearer,) is not negotiable by assignment either at common law by the statute of Ann, or by the act of the Legislature of this State, so as to vest in the assignee a right of action on the warranty, in a suit at common law. Kendrick vs. Giles, 278. WILLS 1. J. R. devised to his wife, during her natural life, certain real and personal estate, remainder over to his children, J. W. R., M. E. and M. B..; also to his three children, J. W. R., M. E. and M. B., and the heirs of their .body separate legacies of personal property; also to his grand-daughter M. J., who is a daughter of a deceased son, certain personal property, to be held in trust for her, but if she should die without any child or children living at the time of her death, then to belong to his three children, J. W. R. M. E. and M. B., share and share alike; also to his stepson, E. L. M. A., he gives certain personal property, after the death of his widow, and if the said step-son should die without heirs of the body, to the said M. E. and M. B., and by a subsequent item of the will declares: "It is my will, that in the event of the death of J.W.R., M. E. or M.B., without heirs of their body of the ONE 80 dying,that his or her property be equally DIVIDED between the SURVIVORS, "M. B. died unmarried and without children: Held that from the superadded Index to Ninth Volume. words and expressions and circumstances contained in the context of the will, it was the intention of testator to fix the period of failure of issue of said M.B. at the time of her death without child or children living ;that the words "heirs of the body" and "without heirs of the body" are to be construed children, to carry out the intent of the testator, and that the limitation over to J. W. R., M. E. and M. B. was good by way of executory devise. 2. The intention of the testator is the polar star to guide in the construction of a will, which intention does not depend on any particular clause standing by itself, but is to be gathered from the whole will, taken together; and where the testator's intention is manifest, it must prevail if it is not contrary to some positive or settled rule of law. 3. General words in one part of the will may be restrained in cases where it can be collected from any other part of the will that testator did not mean to use them in their general sense. 4. The rule in "Shelly's case" and the rule in executory devise, given, as defined. Rusk vs. Rusk, 105. 5. A devise of "all the rest and residue of my property and estate, real and personal, and of every kind and description whatsoever," embraces the corpus of the testator's property not otherwise disposed of. Magee et als. vs. Doe ex dem. Alba., 38. 6. The rule which accords to the interpretation of words occurring in a will, greater indulgence than when used in a deed,must be taken with this qualification, that such indulgence is to be allowed only in aid of the intention of the testator: and where that intention is in equipoise between two contrary constructions, the words used, if they have received a well settled technical meaning,must be interpreted in that technical sense otherwise they are to be taken according to their common conception. 7. The words "child" or "children" occuring in a will usually denote immediate offspring, and in that sense are to be taken as words of purchase; but employed as nomen collectivum, or synonymous with issue or descendants, they are to be taken as words of limitation, and are sufficient to create an estate tail. Where this latter construction has prevailed, however, it has generally been aided by the context. 8. The words "child" or "children" may be used as a term of substitution,that is, putting the immediate offspring in the place of the parent; or it may be used as a term of succession. If employed in the former sense, it will not be |