[Adams v. Jones.]

of this credit from the plaintiffs; and if so, whether the knowledge of Williams of the credit by the plaintiffs to Miss Miller, upon the faith of the guaranty, was not full notice also to the defendant, and thus dispensed with any further and other notice to the defendant. These were matters of fact, very proper for the consideration of the jury at the trial; and, if satisfactorily established, would have dispensed with any farther notice: but are by no means matters of law upon which we are called, on the present occasion, to give any opinion.

A certificate will be sent to the circuit court, in conformity to this opinion.

Mr. Justice BALDWIN dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee; and on the point and question on which the judges of the said circuit court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, "That the plaintiffs were bound to give notice to the defendant that they had accepted or acted upon the guaranty, and given credit on the faith of it." Whereupon it is now here adjudged and ordered by this Court, that it be so certified to the said circuit court.

THE UNITED STATES, APPELLANTS V. WILLIAM MILLS' HEIRS.

A grant of land in East Florida was made by the governor, before the cession of Florida by Spain to the United States, on conditions which were not performed by the grantee within the time limited in the grant; or any exertions made by him to perform them. No sufficient cause for the non-performance of the conditions having been shown, the decree of the supreme court of East Florida, which confirmed the grant, was reversed.

APPEAL from the superior court of East Florida.

In the superior court of East Florida, the widow and children, heirs of William Mills, deceased, presented a petition, claiming title to a tract of land, situated on the east side of the river St. Johns, at a place called Buffalo Bluff, about two miles below the former plantation of Panton Leslie and Company. This land was claimed under a grant of Governor Coppinger, dated St. Augustine, 10th April, 1817.

The petition of William Mills to Governor Coppinger, dated 17th March, 1817, stated that he was an inhabitant of Fernandina, and that in 1805 he had obtained permission from the government to erect a water saw mill, in the place called Mulberry Branch, near the head of Matanzas river, the certificate of which was mislaid; and after erecting the buildings, they were burned down by the rebels in a sedition which took place in the year 1812: and wishing to build another saw mill east of the river St. Johns, at Buffalo Bluff, he asks that a tract of two miles square be granted to him, with title and property thereto, in order that he may carry his purpose into effect.

Governor Coppinger, on the 10th of August, 1817, granted the permission asked for by the petition, to erect a water saw mill on the river St. Johns, on the east side thereof, at a place called Buffalo Bluff; under the express conditions, that until he carries said work into effect, this grant of land will be null. "It being well understood, that unless the said machinery be built and erected, within the term of six months, this favour will be null, and of no value; as it can never be understood to have been granted with any other view but that of protecting the inhabitant settlers, and stimulating them to industry, for the known advantages which result from it to the province, and consequently to the interests of the king."

[United States v. Mills' Heirs.]

The claimants afterwards filed a supplementary or amended petition, in which they state, that the grantee had been deterred from making the improvements mentioned in his petition to Governor Coppinger, by Indian hostilities, and by threats to persons and their property, by hostile Indians, negroes and marauders; and they further state, that by the cession of Florida to the United States, by the treaty of 22d of February, 1819, they were further prevented making the improvements, as it was uncertain how their rights to the land would be affected by the change of government.

The answers of the attorney of the United States to the petition and the amended petition, asserted the non-compliance of the petitioner with the condition of the grant; and as to the amended petition, alleged, as to the dangers of proceeding to erect the mill, that if any such difficulties existed at all, they existed to as great an extent at the time when it is alleged that said grant was made, and when the ancestor of the claimant took upon himself the performance of the condition therein mentioned; as at any time since.

Evidence was taken by both parties, and the claim of the petitioners was confirmed by the superior court of Florida, at July term, 1837. The United States prosecuted this appeal.

The case was argued by Mr. Butler, attorney general for the United States. No counsel appeared for the appellees.

Mr. Justice WAYNE delivered the opinion of the Court:

This is an appeal from a decree of the superior court of East Florida, confirming a land claim.

It differs only from the case of the United States v. Z. Kingsley, decided by the Court at this term; in this: that the conditions upon which the appellee was to have a property in the land petitioned for, was limited to performance within six months from the date of the governor's decree. It was not performed. Nor was any attempt made to perform it by the appellee in his life-time, or by his representatives after his death. No sufficient cause for non-performance is shown within the time limited, nor afterwards; to bring it within those rules of justice and equity, which this Court has said shall be applied in its construction of the 8th article of the treaty of February, 1819, with Spain; on its consideration of grants made upon condition. For the reasons stated in the case of Kingsley, the Court is of opinion

[United States v. Mills' Heirs.]

that the decree of the court below in this case, should be reversed, and it was ordered accordingly.

This cause came on to be heard on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the petitioner has not fulfilled the condition of the grant; and that, therefore, the grant or concession is null and void; and that the petitioner has no right or title to the land. Whereupon, it is now here decreed and ordered by this Court, that the decree of the said superior court, in this cause, be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said superior court, with directions to enter a decree in conformity to the opinion of this Court.

VOL. XII.-2 E

MOSES E. LEVY, APPELLANT V. FERNANDO DE LA MAZA ARREDONDO AND JUAN DE ENTRALGO, APPELLEES.

In the superior court of East Florida, the complainant filed a bill claiming compensation for the non-performance of certain contracts for the sale of lands in East Florida, referring to the contracts; the contents of which are stated to be set out in the bill of the complainant, which was replied to by the defendants. The contracts were not proved in the cause by testimony; nor was the non-production of them duly accounted for, on secondary evidence of the contents thereof, as far as practicable; given before the superior court. The Supreme Court, for this defect and imperfection in the proceedings, had not sufficient evidence before them to found any final and satisfactory decree. The decree of the court of appeals of East Florida, and the decree of the superior court of East Florida, was therefore reversed, and the cause remanded to the court of appeals, to allow the pleadings to be amended, and the documents referred to, or the contents of the same, to be duly authenticated and proved, &c.

APPEAL from the court of appeals of Florida.

This case was argued on the merits by Mr. Preston and Mr. Thompson, for the appellant; and by Mr. Jones for the defendant.

The Court considered, that a certain contract between the appellant and Fernando de la Maza Arredondo, of 22d January, 1822, and a contract between the complainant and Joseph M. Arredondo, of 13th July, 1824, which had been referred to in the proceedings in the courts below, and which were not in the record, were necessary to the decision of the cause, made the following order; which was delivered by Mr. Justice WAYNE.

The Court has had this case under frequent consultation since the argument of it, and, as there is much diversity of opinion among the judges, in regard to the effect which the contract of the 22d January, 1822, between the complainant and Fernando M. Arredondo, junior, and also in regard to the effect which the contract of the 13th July, 1824, between the complainant and Joseph M. Arredondo, would have upon the rights and equities of the parties; and it being considered, from the manner the complainant has set out those contracts in his bill, and from the manner they are replied to by the defendant, Arredondo, that they are substantially exhibits in the