WESTERN DIST. hoc appointed to represent him, which was ordered, and one October, 1840. appointed accordingly. The curator ad hoc never acted, and shortly after died, and Phillips was never notified of his liability in warranty. Upon these issues the parties went to trial before the court.

KIRKBY'S HEIRS

FOGLEMAN.

The evidence of title, of the respective parties, consisted of proceedings in the land office, in making purchases under the different laws of congress, and of the register and receiver's certificates, &c.

The plaintiffs produced the certificate of the register of the land office at Opelousas, dated the 2d day of July, 1827, stating that the two quarter sections of land claimed by them as assignees of Henry Slaughter, had been fully paid for, and that according to the act of congress, passed the 4th May, 1826, they were entitled to a patent from the government, on the presentation of this certificate.

The defendant claimed one hundred and fifty-one acres of the plaintiffs' land, in virtue of a pre-emption right in favor of one William McKee, which was subsequently transferred by several conveyances to him. It was entered the 20th November, 1818, and eighty dollars paid, under the credit system, at $2 per acre, which left two hundred and twentytwo dollars. There was no further payment, until July, 1829, eleven years afterwards, and two years after the plaintiffs obtained their final certificate, covering the same land.

The plaintiffs insist the defendant's right and the partial payment of eighty dollars in 1818, were entirely forfeited by the several acts of congress extending relief to the purchasers of public lands. These various acts are fully set out in the opinion of the court.

The cause was submitted to the court below. There was judgment for the defendant, and that the plaintiffs take nothing by their suit. They appealed.

Cushman argued the case on behalf of the claimants and appellants. He insisted that the register's certificate was full proof of the assignment from Slaughter to Kirkby, and relied on the case of Boatner vs. Ventres, 8 Martin, N. S., 644, 650.

2. All the title the defendant ever had, was forfeited for not Western Dist. complying with the land laws; and especially the act of 2d October, 1840. March, 1821, extending relief to purchasers of public lands.

Brent, for the defendant, submitted the case to the court.

Garland, J., delivered the opinion of the court.

A rehearing having been granted in this case, it has been examined most carefully, and it appears one or two important facts, from not being presented in argument originally, or some other cause, escaped attention. They make a material change in the opinion of the court. The plaintiffs claim the land by purchase directly from the United States, and the claim of the defendant is of the same character, if any he has. In his defence, he insisted upon going back to what is alleged to be the inception of the titles of both parties, and in doing so, the court has fallen into the error which is sought to be corrected. On the 20th November, 1818, John M'Kee claimed the land in controversy, under the preemption law of the 12th April, 1814, and, it is alleged, made proof of his right and entered it, paying eighty dollars on account, and availing himself of the credit then allowed in sales of the public land. The defendant alleges that M'Kee sold his rights to James Bowie, on the 12th February, 1819. Jenkins Phillips sold the land to the defendant, by notarial act, on the 10th November, 1830, although he does not appear to have purchased from Bowie, until May 2d, 1834.

KIRKBY'S HEIRS

V8

FOGLEMAN.

stalments to the

The plaintiffs say, Henry Slaughter was entitled to a preThe penalty emption right on the land, under the same law, and on the for failing to pay 21st November, 1818, established his right, paid eighty dol- the different enlars on account of the price, and availed himself of the credit United States, allowed by law for the remainder. The penalty for failing and entry of to pay the different instalments to the United States, was a credit system, forfeiture of title to the land sold.

for the purchase

lands under the

was absolute forfeiture, and the

land to government.

In April, 1820, the system of credit sales was abandoned, reversion of the and for the purpose of collecting the debts then owing to the government for lands previously sold, congress passed an act, on the 2d March, 1821, allowing to all purchasers previous

WESTERN DIST. to the 1st July, 1820, different periods of credit for the amount
October, 1840. still owing, or a discount of thirty-seven and a half per
KIRKBY'S HEIRS cent. to all such as should prefer to pay in cash.
The pen-

28. FOGLEMAN.

alty for neglecting or refusing to comply with the provisions of this act, on or before the 30th September, 1821, was an obsolute forfeiture of all title, the land reverted to the United States, and was subject to be sold as prescribed by the act of April 24th, 1820, Land Laws, vol. 1, p. 787, 788, 789.

Neither M'Kee or Slaughter, or any person claiming under them, appear to have availed themselves of the provisions of According to this act, and the title to the land was forfeited. By subsegress passed the quent acts, the provisions of the act of March 2d, 1821, were 2d March, 1821, received and extended to different periods, and the penalty in after the change from the credit each act, was a forfeiture of all title; Land Laws, vol. 1, p. 804,

the act of con

to the cash sys

tended the credit on lands al

tem, which ex- 849, 859. None of the parties took the benefit of any of these acts. So that each had forfeited their titles four times, and ready purchased the land belonged to the United States. On the 4th May, but not paid for, or allowed a dis- 1826, congress passed an act revising the act of March 2d, count to those 1821, and extending its provisions to all persons who should preferring to pay in cash; the avail themselves of it and the suplementary acts, on or before penalty for failing to comply the 4th July, 1827. On the 2d July 1827, the plaintiffs prewith these requi-sented themselves to the land officers at Opelousas, alleging Jute forfeiture they were the legal holders of the certificate to Slaughter, the government. and claimed the benefit of the act, which was accorded. What

sitions was abso

and reversion to

lands under the

evidence they offered at the land office to establish the assignment from Slaughter to Kirkby, is not shown, but they were recognized as his assignees, paid the full amount required by law, and obtained a final certificate in their own names, in The entry and which they are stated to be the assignees of Slaughter; that purchase of they paid the price, and further, that on the presentation of act of 4th Janu- said certificate, to "the general land office, the said heirs of ary 1826. previ- J. Kirkby, or their legal representatives, shall be entitled to a divested the U. patent for the land described." This proceeding divested the tle which had United States of all title which had been acquired by the preby the previous vious forfeitures and reversions, and gave plaintiffs a title to forfeitures and the land; Land Laws, vol. 1, p. 904. Neither McKee or any one claiming under him, availed themselves of this act, so there was a fifth forfeiture of their title.

ously forfeited,

States of all ti

been

reversions.

vs.

FOGLEMAN.

On the 21st March, 1828, congress again revived the act WESTERN Dist. of March 2d, 1821, and extended its provisions to the 4th of October, 1840. July, 1829, and on the day before the expiration of the act, KIRKBY'S HEIRS Phillips, claiming to be the assignee of M'Kee, came forward to avail himself of its provisions. An account is stated which shows the original price of the land, the payment of the eighty dollars in 1818, and the balance due after deducting the discount, and credit is given for it as being paid to the receiver; but the defendant produces no receipt from him, or any patent certificate from the register, and from an examination of the whole record, we are induced to believe none was given. It is more than probable, that the statement was made for the purpose of adjusting the claim, and that it was then found the land had been previously sold, and the account therefore left in the office, from which a copy has been taken, as it now appears in the record, or it may be, it was stated, for the purpose of obtaining the benefit of another act of congress of the 23d May, 1828, which authorized scrip to be given to such purchasers of land, for the money paid on account, when they had not availed themselves of the provisions of the act of March 2d, 1821, and the acts supplementary thereto, or were prevented from taking such benefit, by the land being sold after the forfeiture and reversion for non-payment; Land Laws, vol. 2, p. 212, 222. The registers and receivers beWhen Phillips applied to pay for the land, he was not the ing authorized assignee of M'Kee, as the latter had sold to Bowie in 1819, by the laws of and there was no transfer from him to Phillips, until May 2d, ry into effect the 1834, and this suit had been commenced more than eighteen lowing months previous. The registers and receivers are the persons authorized by sale of the pubcongress to carry these various laws into effect, and having court is bound to give effect to the sold the land in controversy to the plaintiffs, we are bound to titles they congive effect to their title, it appearing the defendant has no fer, unless the adverse party title by which he can hold the property. 4 Lousiana Reports, produces a bet547; 6 Louisana Reports, 10.

The judgment in the court below having been in favor of the defendant, it will be necessary to remand the case, to

congress, to car

various laws al

preemption rights, and also, to make

lic lands, this

ter.

WESTERN DIST. give the defendant an opportunity of proceeding against his October, 1840. warrantor, and also to settle any questions that may arise in relation to damages and improvements made upon the land in'controversy.

HARRISON

vs. BOWEN.

So, where the register and receiver's certificate, granted

on

It is, therefore, ordered and adjudged, that the judgment of the District Court be annulled, avoided and reversed; and a pre-emption this court proceeding to give such judgment as, in their right to the plain tiff's ancestor, as opinion, ought to have been given in the court below, do furassignee, payment of the ther order and decree, that the plaintiff do have judgment price, and there against and recover of the defendant the land in controversy, is no evidence of the assignment, being the south-west quarter of section number six, in towncate: Held, that ship number two south, range number three east, containing they must recov- about one hundred and fifty-one acres, and they be quieted against the de- in their title. And it is further ordered, that this case be refendant who manded to the inferior court, to be proceeded in according to elaims under a prior entry, but law between the defendant and his warrantor, and also feited to the U. between the plaintiff and defendant, in relation to rents,

but this certifi

er the land, as

his title was for

States.

fruits, improvements and damages; the appellee paying the costs in this court and those in the court below, up to the rendition of this judgment; those hereafter accruing, to be fixed by the judgment that may hereafter be rendered.

HARRISON vs. BOWEN.

APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF
CONCORDIA.

Where a commission is addressed to a person by name in another state as a special commissioner to take depositions, his capacity and signature and that of the witness who testifies, are not required to be proved. Notice of protest sent to a post-office, in a different state from that in which the endorser resides, is sufficient, when it is shown to be the nearest to his residence and he receives his letters and papers there.

It is not indispensably necessary that demand of payment and notice be made and given by a notary. Any other person may make demand and give notice; the mode of proof only is different.