The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-01-17


war. not in command rendering any actual ssi.
vice 10 the United Salrs yet such officer not out OF
commission. nor out OF service. but sSsd to half pay
under The act OF Nav session. l77s tMskbams admins
traitors vs The Commonwealth. Leigh, oio
la hne, the assumed requisons ior sasi service. or
rather active command, which the denial OF the rights
oil the supernumerary officers in the premises 10 based
10 be found in the express letter. the JUS.
siucton, OF the statutes OF Virginia promising hall pay
or bounty in land such should serve during the
The act of the legislature of Virginia promising hall pay
tor life and lands her officers who should TO the
end OF The became, soon any officer performed
military service under faith OF those ,ems contract
obligatory upon the Stale and The officer. Ii tbe State
could not iurnsh soldiers Tor the officer 10 commands IL
the State the why the officer not in
mand, but supernumerary and Inactive. waiting orders.
the Stale cannot profit by her act IN preventing The officer
commenced II the Officer in dsfaals ~ rssxaGlos
or BY neglect OF duty. dsobedrnce OF OF
fence, whereby he was brought 10 trial and sentenced by
court martial TO be cashered. to be dismissed from
the service, such officer could mol prof, by hs
wrong On the other hand the State Could not escape
from her obligation for hall pay, or land bounty by her
own voluntary act in dschagDg the Off from service
year. or month, or day. before the end OF the
war.
OF Huioekdpel's Lessee Douglass. iii Cranch. no.
That case arose out OF an act o the legislature OF Penn
syvana Tor granting out her western lands To seers ia
tracts not exceeding 400 acres, upon consideration OF
Ct 10 per hundred acres. be paid for warrant OF
vey and OF settlement and cultivation. upon express
dl'ion ''that no warrant or survey shall yesl
grantee has. prior to the date Of such warrant made or
caused to be made shall within the space oil two years
next after The date OF the same. make, be
and cudvang al least two o every hundred
contained IN ore survey, erecting a messuase thereon
lof the habation OF man. and residing, causing a
family 10 reside, thereon Tor the space OF tive Years nex
folowingj and IN default OF such actual settle.
ment and residence, ii shall and may be lawful for this
Commonwealth to issue new warrants TO other settlers.
&C. Provided, that u any such settler, gfantee any
such original or succeeding warrant, shall by force OF
arms OF the enemies OF the United States be prevented
from making such actual settlement be driven there
from, aud shall persist in his endeavors make such
actual settlement aforesaid them in either case he
and his heirs shall be enled have and hold the said
lands in the manner ii the actual settlement had
been made and continued
The plaintiff in eectment had obtained his warrant of
survey. paid the price OF pounds shlngs per
hundred acres, but had made no te,iemest, clearing.
fencing, or Iesdehce, having been prevented or the
space of t~oyears eight months and daye) from
tne the date OF the warrant, 10Th April l793 TO lst jan
oary, 1895, from making sn actual settlement by the
foce OF arms oil the Indian enemy but having persisted
during that space OF tne in his endeavors make such
actual settlement as ths statute prescribed.
he Suprsme Couri OF the United States said in their
opinion by Chief Justice Marshall, (p. TO- iii Cranch y
(" fhs Is contract, and although Sac Is party, II
ought 10 be construed according to those we'll ssiab.
ih he'd principles which regulate contacts generally.
lhe Siaie Is IN The situation oi pefson who holds
iorth 10 The worie the coRdions on which he is will
ling 10 cell his property
I" IL ne should his ,oposions in such ambigu-
consequences OF which saes 10 be isade aud the
purchase money psd. he would come V ith az III grace
INTO coart 10 Insist on the iseat and obscure mean
ing"
The prevention for the years and more by the pub.
nc enemy IN the opinion OF the court sufficient to
dispense with actual settlement and residence,
he esiiihcate 10 the circuit court
Well established principles, regulating contracts gen.
eIaly lead To the results regard the rghie of
orncers maze saperanmefafy by The action Of the gov
eminent
II The obigee ofa bond render the performance iu-
possible, that discharges the obgor-(Co. Lit 206 ;
Touchs'one, p 393)
Ii he whom II coucerns 10 have nv mart OF thr con-
tract iuihed IS the occasion why II 10 not the same
thns 10 me as ii was luhIed-t Powell on Contracts.
p. AID
Ii rule common TO all the condition. OF obligations
thai they ought to be holden TO be performed by one
party where The other has prevented the performance
pohei on Obligations by Evans. part ID, ch 3, par
2l2; Cbiuy on Contracts, by Perkins, $685. e34
As where one is bound 10 deliver a deed on day cer
tain, and The day ready with the Decd and would
tender but for the evasion OF the other party this Is
equivalent TO tender Borden Borden, " Massa.
cnusets Rep, ~
ihs, IS TO say, the engagements OF the Commonwealth
OF Virginia or hall pay and bounty lands obligatory
n her IN all cases where the officer. during the time or
hrs virtual service, was prevented from active service by
the act OF the Commonwealth, of The public enemy or
OF God
Finally, the constituted authorities OF the United Stale,
have given The same construction in favor of supernu
meray officers, TO the resolutions oil congress u.ing
similar words 10 those contained in the statutes OF vir
Congress resolved the 2od March i7s3 (Jour
mails by Way Gideon, vol. iv p I7sD that
such othcers sa arrls, and shall ron,
finus therein 10 The end Of he ,car, shall be entitled
to receive the amount OF i've years full pay or secu
rIties on interest al six per cent per apnun as Con-
gess sba hnd most convenient instead OF the halt pay
promised Tor lie by the resolution OF the 2si day of De-
tober, lfSV Tue sad be are given In
other creditors OF the United States provided il be a,
the option OF the lines OF the respective States and no,
OF ofncers individually those lines to accept or refuse
he same and provided also that their election be sen
he'd 10 congress through the commanderin chief from
those lines under his immediate command within two
months, and through the commanding officer of the
soutnefn army iron those under bis command within six
months IRON the date OF this resolution" !" &c
On the 18th October, 1883, "a vol Journals bv Wav &
uideon, p 2s0,) Congress adopted a proclamation an
hounclng lhe peace and that, n The progress of an
aanous and diffeoit war, the armies OF the United
states OF America have emineny displayed every mill
aTs ana patriotic virtue, and are not less 10 be spplauIed
fof het ioriiute aud magnanimiiy in the mos, irving
scenes OF distress, ban or series OF hetoc and illus.
trious achievements which exalt Them 10 high rank
among The most Jealous and successful defenders OF the
rights and liberties of mankind" ave-
therefore, the United States in Congress thus
impressed with lively sense of the distinguished merit
and good conuuc OF the said armies, do give them The
thanks Oh The country for their long. eminent and faith
u services and 10 our will and pleasure that such OF
he federal armies as stand engaged serve during the
war, and az BY our acts of 26tn MAY. the Ilh day Of
June, The OH day OF August aud the 10th day of Sep
lembef last were tufionghed, shall, from and after The
~ day OF November next be absolutely DISCHARGED by
vnlue oil this our proclamation, IRON The said service
and we do also declare that the further services in the
held oi the officers who dsranyed and on tufiouyb
IN consequence OF our aforesaid acts, now be dis
pesed with, aud they have full perpis.on 10 retire
IRON service without being longer liable from their pres
en engagements to he called into command
hefe we have me high authority of the Congress Of lhe