United States vs. Langton and Trustees.

bar, that the sum seems put down as a mere estimate, and not as the exact amount; for the terms of the assignment are, that "the three sums of money, together with the said amount of customhouse bonds, amount in all, as near as can be ascertained, to the full sum of," &c. Besides, in either view, there is a mistake as to the amount of the custom-house bonds. If the amount of all the bonds had been exactly $8400, there might have been a stronger ground for argument. If, then, the sum be mistaken, and we resort to the other words of the instrument to qualify or explain the intention, we there find the bonds described to be those, on which Monroe is surety. The mistake is, therefore, corrected by the context. Where there is any repugnancy or mistake in a description, if sufficient certainty as to the thing intended on the whole appears, the repugnancy or mistake does not vitiate. Taking the whole description together, it will run thus: -"$8400 for custom-louse bonds, upon which W. Monroe is surety;" and upon such an assignment, intended for his special protection, there cannot, I think, be a legal doubt, that the mistake of the amount must yield to the certainty of the other part of the description. The whole provision must otherwise be rejected for utter uncertainty, and Monroe be left without any security, since the misdescription as to the amount of all the bonds owing to the United States is equally clear; or we must resort to parol evidence to explain the latent ambiguity.2

My opinion is, that there is no necessity to resort to such evidence in this case. But if resort is to be had, the answers of the trustees, and particularly of Monroe, are entirely decisive. He explicitly swears, that no other bonds, than those on which he was surety, were in the contemplation of the parties, or intended to be provided for; and that at the time of the assignment, the exact amount of these was not known to them.

2 See Colpoys vs. Colpoys, 3 Jac. & Waik. R. 451, 462.

United States vs. Langton and Trustees.

This is not all. The onus probandi is on the United States in this case, to establish, that the bond now in controversy is covered by the assignment; for otherwise, Monroe has a right to retain for the deficiency due to him. There is an acknowledged mistake in the amount of the bonds in the description. The United States must show, either that there is sufficient certainty on the face of the instrument to establish their claim, (which has not been done,) or that parol evidence is admissible to explain the intent; and then that very evidence overthrows their claim. Upon the whole, my opinion is, that the trustees are entitled to be discharged, and judgment must be entered accordingly. Trustees discharged.

UNITED STATES vs. THOMAS GRUSH.

The words "high seas in the crimes statute of 1825, ch. 276, § 22, mean the unin closed waters of the ocean on the sea-coast outside of the fauces terræ.

The State Courts have jurisdiction of offences committed on arms of the sea, creeks, havens, basins, and bays, within the ebb and flow of the tide, when those places are within the body of a county; and in such cases the Circuit Courts of the United States have no jurisdiction under the said statute.

Where an arm of the sea or creek, haven, basin, or bay is so narrow that a person standing on one shore can reasonably discern, and distinctly see, by the naked eye, what is doing on the opposite shore, the waters are within the body of a county.

In such waters it seems, that the admiralty and common law courts have concurrent jurisdiction.

The county of Suffolk, in which the city of Boston is included, extends to all waters between the circumjacent islands, down to the Great Brewster, and Point Allerton.

INDICTMENT against the prisoner for an assault on one Neil Lemon with a dangerous weapon, and with an intent to kill, founded on the act of Congress of 1825, ch, 276, § 22. The indictment contained several counts, in some of which the offence

United States vs. Grush.

was alleged to be committed on the high seas, and in others in Massachusetts Bay. The prisoner pleaded not guilty, and was convicted of the offence by the jury.

A motion for a new trial, on the ground of the want of jurisdiction of the Court, was made, and also a motion in arrest of judgment, on the ground, that in the caption of the indictment, there were not after the words in the margin, "District of Massachusetts," the letters SS. These motions were argued by the prisoner's counsel and the District Attorney.

For the prisoner it was contended, by Mr. Parker, that the locus in quo was neither on the high seas, nor in Massachusetts Bay, nor out of the jurisdiction of the Commonwealth of Massachusetts, but in the harbour and port of Boston, in the county of Suffolk.

That the Massachusetts statute of 1790, vol. 1, ch. 4, p. 383, spoke of the Light-House or Light-House Island in the harbour of Boston. This was the outer light-house. The Massachusetts statute of 1819, vol. 2, ch. 69, p. 517, spoke of Hallway Rock in Boston Bay and Long Island Head in Boston harbour. That in the Laws of the United States, 2d vol., Story's edition, p. 1175, statute of 1810, ch. 64, in the 2d and 5th sections, the Greater Brewster was declared to be at the entrance of the harbour of Boston. That the force of these expressions would be apparent, by an inspection of the charts in the case. In considering Bevans's case, the place where the ship was anchored was such, that no person, standing on the main land in any direction, could testify to any events on the opposite main land, supposing the island removed. He could not find that George's Island had been ceded to the United States, although the United States government were erecting a sea-wall there at great expense.

Upon the other question, (the omission of the SS.,) for his part he was quite willing that all the unmeaning forms of indict- ment should be suppressed; and this case might afford a convenient opportunity to set a useful example. He was willing

United States vs. Grush.

that the exception should not prevail, if the indictment could be supported without it. But it was his duty to his client to place it before the Court for consideration. If practice be indicative of the law, it might be confidently asserted, that the SS, had been uniformly retained in the Massachusetts State Courts, and had never before been omitted in the United States Courts in this district. It was used in the New York State Courts. See Davis's Justice, p. 234 to 237; "Dutchess County, ss." same book 221 and the following pages, and 240, 241. It was used by magistrates in acknowledging deeds, in taking depositions, and in the caption of all warrants. It was prescribed as a necessary part of the form in the Mass. stat. of 1784, ch. 8; also the civil writs of the United States uniformly retained it. In England, it seemed sometimes to be used, sometimes omitted. In Tremain's Pleas of the Crown, there was no omission of it. In 4 Chitty's Crim. Laws, p. 17, "County of, to wit," was used. See pp. 36, 58, 59, 60, 61. In page 249, "West riding of Yorkshire, to wit;" 248," Cambridgeshire, to wit;" 343, England, to wit." In Russell and Ryan's Cr. Cases, reserved for the opinion of the twelve judges, p. 179. Rex vs. Susanna Goff, the report stated that the indictment had the common caption,

County of Hants, to wit." That the practice in this country seemed to be universal, to retain it; it was sometimes omitted in England. That one would draw an inference from Hobart's Reports, pp. 171, 172, that like Lord Coke's &c., there was much matter of excellent learning in a "viz." He also referred to Dane's Abridgment, vol. 7, ch. 218, art. 5, and the various cases there cited.

On the part of the United States it was contended, by Mr. Dunlap, that in relation to the question respecting the jurisdiction of the Courts of the United States, raised in this prosecution (which was instituted before he came into the office of Attorney of the United States), it certainly was one of great importance, affecting the sovereignty of one of the States of the Union. He

United States vs. Grush.

referred the Court to the following authorities. 1 Hale, 424; 2 Hale, 15-54; East's Pleas of the Crown, 804; 1 Leach's Rep. 388; 2 Leach's Rep. 1093; 1 Mason's Rep. 247; 5 Wheat. Rep. 76-93-200; 5 Rep. 106, Sir Henry Constable's case. In relation to the statutes of the state of Massachusetts and of the United States, referred to on the other side, he said that it was evident that they were intended to indicate geographical, and not legal boundaries. They never were intended to fix the boundaries of the jurisdiction of the United States and the State Courts. The admiralty jurisdiction of the Courts of the United States was to be ascertained by legal principles and decisions establishing what were the high seas. He stated a case much stronger than the present, where the state tribunals had declined jurisdiction, a case in which he was the counsel for the defendant. According to the best of his recollection, these were the facts: A man of the name of Butler stole a watch on board the steam-boat from Nahant, when she was inside of Pudding Point Gut, and below Apple Island, clearly within Boston harbour. The case was submitted to Judge Dawes, the judge of the Municipal Court (than whom no man was better acquainted with the ancient and acknowledged limits of the jurisdiction of the Criminal Courts of the county of Suffolk), and the grand jury. No bill was found, and it was for the supposed want of jurisdiction, for the thief was caught in the fact, taken in the mainour. If the United States tribunals had not jurisdiction, where the fauces terra were five or six miles apart, and where witnesses on either side could not reasonably discern what was going on upon the other side, most offences committed on board of vessels in that vicinity must go unpunished; for it would be, in many cases, where a vessel was in motion at the time, impossible to ascertain whether she was within the boundaries of Essex, Norfolk, Plymouth, or Suffolk. Even in the case of Suffolk and Middlesex, separated only by Charles river, whose course, banks, and channel were known, it had been found necessary to provide by the Massachusetts statute