Richards et al. vs. Randolph.

process, on part of the premises, and that upon the execution which issued thereon, the same was sold at a sheriff's sale, and purchased by Randolph. The attachment was made on the 13th of December 1823; the execution issued on the 10th of July 1826; and the sheriff's deed to Randolph, was dated on the 13th of August 1827.

Searle for the plaintiff, è contra.

STORY J. I am clearly of opinion, that the plaintiffs have not made out their title. The acknowledgement of the deed made to them by George D'Wolf is fatally defective. The statute of Rhode Island (Digest of 1822, p. 202, &c.) provides, that no estate of inheritance or freehold, or for a term exceeding one year, in lands, shall be conveyed, unless by deed duly acknowledged and recorded in the town clerk's office, where the lands do lie. Where the party grantor, "doth not reside" in the state, the acknowledgement may be before a magistrate "in the state or country where such party shall reside," who is "to certify the same under his hand and seal." Where the party is within the state of Rhode Island, the acknowledgement must be before some proper magistrate thereof. The second section of the act then provides, "that all bargains, sales, and other conveyances whatsoever of any lands &c., and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void, unless they shall be acknowledged and recorded as abovesaid; provided always, that the same between the parties and their heirs shall nevertheless be valid and binding."

Now, the acknowledgement in this case is not under the seal of the Boston magistrate, and therefore it is fatally defective on this account alone. But the grantor was not, at the time of the execution of the deed, resident in Massachusetts, within the sense of the statute, and therefore no acknowledgement could be good before any such foreign magistrate. The grantor was transiently at Boston, and it is admitted, and is indeed notorious from the

Richards et al. vs. Randolph.

description in the deed itself, as well as otherwise, that his residence and inhabitancy were then in Bristol, in Rhode Island. The plaintiffs, therefore, upon their own showing, have not made out a perfect title. The defendant claims title under a subsequent bona fide deed in trust for creditors. Admitting the title of the plaintiffs then to be good between them and D'Wolf and his heirs, it cannot bind the defendant, claiming under a distinct title, adverse to the plaintiffs.

Plaintiff discontinued.

CIRCUIT COURT OF THE UNITED STATES.

Fall Circuit.

MAINE, OCTOBER TERM 1828, AT WISCASSET.

Hon. JOSEPH STORY, Associate Judge of the Supreme Court. BEFORE Hon. ASHUR WARE, District Judge.

WILILIAM B. WALLACE US. THOMAS AGRY AND OTHERS.

Assuming that a foreign bill of exchange, payable after sight, ought to be presented within a reasonable time, that time must be judged of with reference to the usage among merchants as to delays in the negotiation and transmission of such bills.

THIS cause was again tried by the jury at this term. In addition to the testimony formerly in the case, there was evidence, that in Boston and elsewhere in America, the usage and understanding among merchants was, that upon foreign bills of exchange payable after sight, the holder was under no obligation to present them for acceptance at any particular time. He was at liberty to consult his own discretion. In short, that no time was known or recognized among merchants, within which the presentment should be made; but the holder might keep the bill any length of time he pleased. There was also evidence of a like nature, and tending to the same result, as to the usage and understanding among merchants at the Havana. There was also evi

1 See ante, Maine, May Term, 1827, at Portland, vol. iv. page 336.

Wallace vs. Agry et al.

dence, that foreign bills drawn at the Havana on London, and elsewhere, were often sent to different ports of the United States, for negotiation and sale; and no particular time was understood to be fixed, within which they should be negotiated, and no particular modes of conveyance, direct or otherwise, by which they should be sent to London. In many instances, they were sent to Spain and France first, when drawn on London; and in many instances, to the United States. No law or usage existed requiring them to be sent direct to London. In respect to foreign bills it did not appear from the evidence, that the Spanish law differed in any material respect from the general commercial law of England or America.

The cause was argued by Mitchell and Greenleaf for the plaintiff, and by Daveis and Longfellow for the defendants.

STORY J., in summing up the case said, that the Court adhered to the doctrine given to the jury at the former trial. As far as the new evidence went, it corroborated, in point of usage, that, which the Court supposed to be the Spanish law. That, at all events, if the doctrine were correct, that foreign bills, like the present, were required to be presented within a reasonable time, on which the Court would not give any absolute opinion; still the evidence in the case of the usage of merchants, if not good evidence of the law, was evidence as to their understanding of what was reasonable time, and in that view proper for the consideration of the jury that with reference to such usage, he would put it to the jury to say, whether the present bill was not, in point of fact, put into negotiation, or transmitted for presentment, within a reasonable time. If the jury thought it was, then so far as this point was essential to the plaintiff's cause, he was entitled to their verdict.

The judge then adverted to the other points made in the cause, affirming the former doctrine held by the Court.

The jury found a verdict for the plaintiff.

United States vs. An Open Boat and Lading.

UNITED STATES US. AN OPEN BOAT AND LADING.

An open boat is not a ship or vessel within the purview of the statutes of 1820, ch. 122, and 1823, ch. 150, which prohibit commercial intercourse from the British colonies.

It seems, that, notwithstanding those statutes, open British boats may visit the United States, if not destined for trade.

British ships or vessels excluded from our ports by those statutes, are such as are owned by British subjects, having a British domicil, and sailing under the British flag, and not ships or vessels owned by British subjects domiciled in the United States.

LIBEL of seizure for violation of the navigation and intercourse acts of 15th of May 1820, ch. 122, and of 1st of March 1823, ch. 150, against an open boat and her tackle and lading.

The information alleged, (1.) that this was a boat or vessel, owned wholly, or in part, by British subjects, and that she came and arrived by sea, from some part of the province of New Brunswick, within the port of Eastport; (2.) that sundry goods, not of the growth and manufacture of the United States, comprising the boat load, were shipped and waterborne on the waters of the Bay of Passamaquoddy, for the purpose of being exported into New Brunswick in said boat, &c. not being a vessel of the United States.

The facts, as proved, were as follows. The boat was under five tons in burthen, and was without a deck, and had on board, at the time of the seizure, 28 barrels of tar and pitch, with which she was bound from Eastport to St. Andrews, in New Brunswick. She had no custom-house papers on board at the time of the seizure, and it did not appear, that such papers had at any time been taken out for her. She was owned by British born subjects, who, with their families, had resided and been domiciled at Eastport for several years; and her home was admitted to be at Eastport.

The goods on board were claimed by Joseph C. Noyes, a citizen of the United States, residing at Eastport.