[LOCAL LAW.]

M'CLUNG v. ROSS.

Under the laws of Tennessee, where lands are sold by a summary proceeding for the payment of taxes, it is essential to the validity of the sale, and of the deed made thereon, that every fact neces

adverse, cannot be construed into an adverse possession.

HIS cause was argued by Mr. Williams' for the

General and Mr. F. Jones for the defendant.

*Mr. Chief Justice MARSHALL deliver- [*117 sary to give the court jurisdiction should appeared the opinion of the court: This is an action of

upon the record.

Under the statute of limitations of Tennessee, the running of the statute can only be stopped by actual suit, if the party claiming under it has peaceable possession for seven years. But such a possession cannot exist if the party having the better! right takes actual possession in pursuance of his right.

One tenant in common may oust his co-tenant, and hold in severalty; but a silent possession, unaccompanied with any act amounting to an ouster,or giving notice to the co-tenant that his possession is

ejectment brought by the lessee of David Ross

1-He cited 2 Tenn. Rep. 44, 218, 186, 365, 358, 242; Tenn. Rep. 362, 467, 545; 1 Hayw. Rep. 24, 62, 65, 95; 2 Hayw. Rep. 80; 3 Mass. Rep. 379; 2 Tidd's Pract. 936; 2 Binney, 223, 329; 1 Binney, 40; 4 Dall. 226; 1 Wash. Rep. 313; 9 Johns. Rep. 58, 179.

2.-They cited 1 Tenn. Rep. 119, 126, 436; 2 Tenn. Rep. 40; 5 Hayw. Rep. 294; i Hayw. 176; 4 Wheat. 77.

in any wise. Nevertheless, of the death of a man, and of a mayhem done in great ships, being hovering on the main streams of great rivers, only, beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers, the admiral shall have cognizance; and also, to arrest *ships in the great flotes for the great voy-[*110 ages of the King, and of the realm; saving always to the King all manner of forfeitures and profits thereof coming; and he shall also have jurisdiction upon the said flotes during the said voyages, only saving always to the lords, cities, and boroughs, their liberties and franchises." The true limit of the admiralty jurisdiction under these statutes was long a subject of angry contention between the civilians and the common lawyers. But it is admitted on all sides, that on the main or high seas (which, as Blackstone states, begin at the low watermark, 1 Bl. Comm. 110), the admiralty has jurisdiction exclusive of the common law; and that, bethe sea ebbs and flows (which is technically the shore of the sea, or littus manis, Hale de Jure Mar. ch. 4, p. 12), the common law and the admiralty have a divided empire (divisum imperium) or alternate jurisdiction, one upon the water when it is full sea, the other upon the land, when it is an ebb. 1 Bl. Comm. 110; Constable's case, 5 Co. Rep. 106, 107; Barber v. Whanton, 2 Lord Raym. 1452; 2 East's P. C. 803; 4 Bl. Comm. 268. Upon the seacoast, therefore, it is incontestible that the body of every county bordering on such coast, is bounded by the shore of the sea, and at no time extends below low water-mark.

Lord Coke, in 4 Inst. 135, et seq., after admitting that the admiralty had jurisdiction of all things done upon the sea, endeavors to establish the doctrine, that the sea, er vi termini, did not include any navigable waters within the body of any county of the realm; and for proof of this, he mainly relies on certain authorities in Fitzherbert's Abridgment (Avowry, 192; Corone, 399), which, when carefully considered, will not support his position. The hostility of Lord Coke to the admiralty, and indeed to every other jurisdiction rivaling the common law courts,is well known; and Mr. Justice Buller has ob served, that" with respect to what is said relative to the admiralty jurisdiction in 4 Inst. 135, that part of Lord Coke's work has been always received with great caution, and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against that jurisdiction." All the authorities cited by Lord Coke will be satisfactorily disposed of upon the supposition (which Lord Hale asserts to be the fact) that before the thirty-tween high water-mark and low water-mark, where fifth year of Edward III., the common law exercised, even upon the narrow seas, as well as in ports and havens within the ebb and flow of the tide, a concurrent jurisdiction with the admiralty. 2 Hale's P. C. 13 et seq. Neither does the case itself in Fitz. Abr. Corone, 399, 8 Edw. II., warrant Lord Coke's assertion. Stanton, J., is there reported to have said, that it is not an arm of the sea where a 109*] man can see *what is done on the one side of the water and the other; and that the coroner, in such cases, shall exercise his jurisdiction there. This dictum, taken literally, cannot be considered as law, for in the year books (22 Assisarum, 93) it is expressly held, that every water which flows and reflows, is called an arm of the sea, so far as it flows. "Que chescun ewe, que flow et reflow, est appelle bras de mer cy tantaunt come el flowe." The same doctrine is quoted and confirmed by Lord Hale, who states, that the sea is either that which lies within the body of a county or without; and that an arm or branch of the sea which lies within the fauces terræ, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hale, De Jure Mar., ch. 4, p. 10. So that there is the strongest reason to question Lord Coke's authority in this respect, and to adhere to the evidence furnished by the records of the admiralty, of its ancient jurisdiction in ports and havens within the ebb and flow of the tide.

But what constitutes the boundary of counties bordering on arms of the sea, and navigable rivers, is a question concerning which great differences of opinion have been expressed. It has been strenuously insisted by the judges of the admiralty, that, notwithstanding the statutes of Richard, the admiralty still continues to possess jurisdiction in all ports, havens, and rivers, where the sea ebbs and flows, below the first bridges. 1 Sir L. Jenkins's Life, xcii; Exton, b. 2, ch. 3 et seq.; Zouch, 92. And Sir Henry Spelman adopts the same opinion. Spelm. Reliq. 226. The ground of this opinion is, that the same rule exists at the common law in respect to the bounds of counties on navigable waters and arms of the sea as is applied by the same law to the sea-coast, viz., that they are limited by the ebb and flow of the tide; and that the statute of Richard was intended *no further to restric' the ad- [*111 miralty than as to crimes con mi ted above the first bridges. 1 Sir L. Jenkins's Lite, xcii; Exton, that the agreement of the twelve judges in 1632, cited at large (ante, Vol. III., p. 365, note 4), strongly countenances this pretension. In Rex v. Soleguard (Andrew's Rep. 231), also, Sir Edmund Isham cited an opinion delivered as recently as 1713, on a reference to all the judges, in which ten of them (against Ward, C. B., and Gould, J.,) held," that the admiralty hath a jurisdiction in all great navigable rivers from the bridges to the sea." And in that case the court did not deny the jurisdiction, but founded their judgment upon a supposed concurrent jurisdiction of the common law. On the other hand, Lord Coke, principally on the authority of the two cases before cited (4 Inst, 140; Fitz. Abr. Avowry, 192, and Corone, 399), maintains that the bodies of counties comprehend all

How far this ancient jurisdiction has been altered by statutes, is another question. The statute 13 Richard II., ch. 5. enacts, "that the admirals, and their deputies, shall not meddle henceforth of any-ch. 10 to 20; Zouch, 92. And it cannot be denied, thing done within the realm, but only of a thing done upon the sea, according as it hath been duly used in the time of the noble King Edward (III.), grandfather of our Lord the King that now is." The statute 15 Richard II., ch. 3, enacts, "that of all manner of contracts, pleas and quereles, and of all other things done, or arising within the bodies of counties, as well by land as by water, and also of wreck of the sea, the Admiral's Court shall have no manner of cognizance, power, nor jurisdiction; but all manner of contracts, pleas, and quereles, and all other things rising within the bodies of counties, as well by land as by water, as afore, and also wreck of the sea, shall be tried, determined, discussed, and remedied by the laws of the land, and not before, or by the admiral, nor his lieutenants,

1820

M'CLUNG V. Ross.

117

against Charles M'Clung, for 5,000 acres and was proved only by the following indorseof land, lying in the District of East Tennes

see.

At the trial of the cause, the plaintiff in the court below gave in evidence two grants from the state of North Carolina, for the land in controversy, to Stockly Donalson and John Hackett, the one dated the 20th of September, 1787, and the other dated the 22d of February, 1795. He also gave in evidence a deed of conveyance of the said land, purporting to be from Stockly Donalson and John Hackett, dated the 29th of September, 1793, and registered in Hawkins county, Tennessee, on the 27th The regular registration of December, 1793. of this deed, so far as respected Stockly Donalson, was admitted by the defendant. Its registration as to John Hackett was not admitted,

see from navigable waters where persons can one side to the other; or rather, as other austate it. the more accuracy, thorities, with point, where a man standing on one side of the land, may see what is done on the other side. Hawkins's P. C. ch. 9, sec. 14; 2 East, P. C. 804. Lord Hale appears to speak with great doubt and hesitation on this subject, merely asserting that "an arm or branch of the sea, where a man may reasonably discern between shore and shore, is, or at least may And it may fairbe, within the body of a county.' ly be inferred as well from this cautious expression as from his commentary on the statute of the 28th Hen. VIII., ch. 15 (2 Hale's P. C. 16, 17), that Lord Hale was not satisfied with Lord Coke's exposition of the common law boundary of counties. The whole question, however, became in a great degree unimportant in England after the enactment of the statute of the 28 Hen. VIII., ch. 15, which gave to the High Commission Court (of which the admiral or his deputy is the presiding judge), cognizance of "all treasons, felonies, robberies, murders and confederacies committed in or upon the sea, or in any other haven, river, creek, or place, where the admiral or admirals have, or pretend to have jurisdiction." In the exposition of this statute, Lord Hale says: "This seems to me to extend to great rivers where the sea flows and reflows below the 112] *first bridges, and also in creeks of the sea at full water, where the sea flows and reflows, and upon high water upon the shore, though these possibly be within the body of the country, for there at least by the statute of 15 Rich. II., they (the admirals) have a jurisdiction; and thus, accordingly, it has been held, at all times even when the judges of the common law have been named, and sat in the commission; but we are not to extend the words (pretend to have) to such a pretense as is without any right at all; and, therefore, although the admiral pretend to have jurisdiction upon the shore, when the tide is reflowed, yet he hath no cognizance of a felony committed there." 2 Hale's P. C. 16, 17. This construction of the statute, in opposition to Lord Coke's, was solemnly adopted in a very recent case by the twelve judges; and sentence of death accordingly passed upon the prisoner upon a conviction under the statute. Rex v. Bruce, 2 Leach's C. C. 1093; 4th Ed. cited at large, ante, Vol. III., p. 371, note 1. Sir Leoline Jenkins, in his charge given at the Admiralty Sessions at the Old Bailey, speaking of the commission given to the judges under the statute, says: "But the commission itself explains the word (pretend) in a more particular manner in directing the inquiry to be of things done, not only upon the sea, and in havens, creeks, and rivers, as in the statute, but also in all places whatsoever within the flowing of the water, to the full sea mark; and in all great rivers from those bridges downwards that are next the sea; which words, being in the commission, are the best comment upon the statute, it having so often passed the great seal in these last seven score years, under the view and approbation of so many Lords Chancellors and Keepers, and of so many Attorney-Generals, men of the greatest eminency in the laws of the land, so that the words of the statute, and the commission, being taken together, do not only ascertain the power of this court to bear and determine offenses done in all, or any of those places, but do also declare all and every of

ments:

"December Session, 1793.
This deed was proved in open court, and
ordered to record.

Test.

RICHARD MITCHELL, C. H. C.
This conveyance was registered 27th of De-
cember, 1793, in liber G., p. 127, in the regis-
ter's office of Hawkins county.
THOMAS JACKSON, C. R."

It is stated in the bill of exceptions, that the
execution of the deed on the part of Hackett
was not proved.

The defendant also claimed under Stockly
Donalson; but his deeds being of subsequent
date, could confer no title while the deed to
Ross remained in force. *For the pur- [*118

the places themselves to be within the jurisdiction
of the admiralty; for otherwise, the jurisdiction of
the commissioners since the statute would be of
larger extent, and in more places than the jurisdic-
tion of the admiral was before the statute, which it
But where such havens,
*is clear was not intended by the law-makers."[*113
1 Sir L. Jenkins, xci.
creeks, and rivers, &c., are within the body of a
county, it seems now generally agreed that the
2 Hale's P. Č. 15, 16;
courts of common law have a concurrent jurisdic-
tion over the same offenses.
Rex v. Bruce, 2 Leach's C. C. 1093, 4th ed.
Supposing, however, Lord Coke's view of this
matter to be correct, the limits of a county will
still be confined to places in rivers, creeks, and arms
of the sea, which are so narrow as that a person on
one side can reasonably discern and attest upon
oath anything done on the other side; for the rea-
son assigned for this rule of limitation is, that the
pais may there come and take inquisition of the
facts. 4 Inst. 140; 2 East's P. C. 804. And, in Eng-
land the admiralty hath by the express provisions
of the statute 15 Rich. II., ch. 3, cognizance of every
description of homicide and mayhem, "happening in
great ships being and hovering in the main stream
of great rivers below the bridges of the same rivers,
which (as Blackstone observes), are then a sort of
port or haven; such (to use his own illustration), as
are the ports of London and Gloucester, though
they lie at a great distance from the sea, 4 Bl.
Comm. 268, and though they be within the body of
a county, 2 Hale's P. C. 16.

But it is certainly very questionable how far the statutes of Richard II. are to be considered as restrictive of the grant of admiralty and maritime jurisdiction contained in the constitution of the United States. These statutes were never designed to apply to the colonies, for at that time the colonies did not exist; and in point of fact, the admiralty jurisdiction in the colonies has always depended entirely upon the royal commission, and upon acts of Parliament expressly extending to them. Hence, the colonial vice-admiralty courts have constantly exercised jurisdiction in many cases, such as revenue cases, of which the High Court of Admirality in England has not recently taken jurisdiction. I say recently, because it seems that formerly the admiralty in England did take jurisdiction of the breaches of the navigation laws, and other laws of trade; either by the express provisions of those statutes or in virtue of its original maritime

See a

jurisdiction. 1 Sir L. Jenkins's Life, lxxii., [*114
xcv., et seq.; 2 Sir L. J., p. 745,746. But it appears that
the colonial vice-admiralty courts have uniform-
ly exercised a jurisdiction over revenue cases upon
their original inherent powers by virtue of their
commissions, independent of any statute.
case cited in The Fabius, 6 Rob. 245. Beside, the
restrictions contained in the statutes of 13 and 15.
Rich. II., as to criminal jurisdiction, are purely
arbitrary, and cannot be considered as declaratory
of the pre-existing law. What reason is there why
the admiralty should have jurisdiction of homicide
and mayhem in rivers, ports, and creeks of the sea,
and not of other crimes in the same places? Such
a limitation has no foundation in the ancient con-
It is also a well-
stitution of the court, and never at any time exist-
ed independent of the statute.
established rule in the construction of English
47
statutes, that they are not to be considered as ex-

In January, 1810, Miller Francis, collector of taxes in Rhea county, for the year 1809, re-ion, reported in 5 Haywood, 394, establishes

Upon this testimony, the defendant in the Circuit Court moved the court to charge the jury, 1st. That if they believed the possession taken by Meriott to have been on behalf of Hackett and M'Clung, and that Hackett continued said possession for himself and M'Clung, for seven years before suit, it was adverse, and would bar the claim of the lessor of the plaintiff. And farther, that the possession of the land taken by Cox, as tenant of Ross, would not suspend the statute of limitations, and that the effect of the said statute could be defeated only by suit at law.

the general principle, that in these summary | Hackett showed this agent of Ross the land in proceedings, every fact which is necessary to controversy as the land sold to him; that in the give jurisdiction, ought to appear in the record year 1813 the same agent agreed to lease a part of the court. The act of 1807 directs the court to of the land to one Cox, who, in pursuance of proceed on the return of the collector, that the the said agreement, entered thereon, and built taxes of the preceeding year are unpaid, or that a small house, but being threatened by M'Clung the land has not been returned for taxation. with a suit, he abandoned it. Whether this act, which is supplemental to that of 1803, authorizes the court to give judgment for the sale of land, although there may be personal property in the county sufficient to pay the tax, or only varies the mode of proceedings against the land, without varying the circumstances under which it may become liable, is a question which does not appear to have been decided in Tennessee, and which it is unnecessary to decide in this case, because we are all of opinion, that if the sale was valid, Ross is to be considered as the purchaser of his own title, and Farquharson as the purchaser of the title of Donalson and Hackett. The objection to this is, that the agent of Ross stood by and permitted Farquharson to bid. But this objection implies a knowledge on the part of Ross, or his agent, that the land sold in the name of Donalson and Hackett was his land. There is no evidence that either of them possessed this knowledge; nor are the circumstances such as would justify its being presumed. Were the court required to presume fraud on this occasion, it is not to Ross, or to his agent, that the evidence on this particular part of the transaction would justify us in ascribing it. We think, then, that the defend121 ants in the court below *acquired no title to Ross's land by the sheriff's sale or deeds. We think, then, that there was no error in rejecting these deeds.

The defendant also claimed the benefit of the act of limitations, which makes seven years' peaceable and adverse possession a complete bar to the action.1

This instruction the judge refused to give, but did *charge the jury that Hackett [*123 was by law a tenant in common with Ross, of which character he could not discharge himself by agreement with a younger purchaser from Donalson, and that the statute would not bar his right. With respect to the occupancy of Cox, the judge said, that merely going upon the land would not stop the running of the statute, but that if an older adverse claimant took actual possession by building houses, clearing land, &c., the operation of the statute of limitations might be thereby suspended. To this opinion, also, the counsel for the defendant excepted.

On examining the whole testimony stated in the bill of exceptions, it appears that the contract with Hackett, which is stated by Meriott in his deposition, was a contract for the sale and purchase of a part of the tract of 5.000 acres sold by Donalson to Ross, and that his contract with M'Clung was a sale of M'Clung's part of the same land, on condition that he would hold the whole tract for M'Clung and Hackett. The actual possession of Meriott, then, does not appear to have extended beyond his purchase. He does not allege that Hackett put him in possession of more land than was sold to him; nor does it appear that M'Clung put him in possession of any land farther than the virtual possession which was to be implied from the agreement which has been stated. The possession of Meriott, then, was an actual possession of a part of the land under a purchase. It was his own possession, in his own right, and not the possession of Hackett and M'Clung. His agreement with M'Clung to hold the residue of the land for Hack- [*124 ett and M'Clung, never having been followed, so far as is shown to the court, by actual occuThe plaintiff then proved, that in 1795 Johnpation of any part of that residue, cannot, we

In support of this claim, he relied on the testimony of John Meriott, who swore, that in pursuance of an agreement between him and John Hackett, who informed him that the land 122*] belonged to him (Hackett) *and the defendant, M'Clung; he took possession of the land in March, 1807, built a house, and cleared seven or eight acres, and retained possession of the land until the contract was rescinded. By a contract with M'Clung, he agreed to hold possession for M'Clung and Hackett. It also appeared in evidence that Meriott remained in possession until the autumn of 1808, when he surrendered it to Hackett, who, in the succeeding spring, moved with his family into the house Meriott had built, where he resided until his death, since which event it has been occupied by his widow and family.

1. The statute of Tennessee of 1797, c. 47, made | to settle the true construction of the statute of limitations of North Carolina of 1715, provides, that in all cases, whenever any person or persons shall have had seven years' peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above term, that then and in that case the person or persons so holding possession as aforesaid' shall be entitled to hold possession, in preference to all other claimants, such quantity of land as shall be specified in his, or their said grant, or deed of conveyance founded on a grant as aforesaid." The act Wheat. 5. U. S., Book 5.

then proceeds to bar the claim of those who shall neglect, for the term of seven years, to avail themselves of any title they may have.

Under the statute of North Carolina, it had been determined by the courts of that state, that it afforded protection to those only who held by color of title. And under the act of Tennessee, it is settled by the decisions of the local courts, and of this court, that it does not like other statutes of limitation, protect a mere naked possession, but that its operation is to be limited to a possession of seven years, acquired and held under a grant or a deed founded on a grant. Patton's Lessee v. Easton,ante. Vol. I., p. 476.

think, be construed into such a possession by Hackett and M'Clung as to affect the title of Ross. If the defendant cannot avail himself of the possession of Meriott, then it is not shown that the bar was complete when this suit was brought. The contract of sale with Meriott was rescinded in the autumn or winter of 1808, and Hackett entered into the land in the spring of 1809. This suit was instituted on the 27th of March, 1816. The testimony does not show that the entry of Hackett was anterior to the 27th of March, 1809. This, however, ought to be left to the jury. But the judge was of opinion that the possession of Hackett was not adverse to that of Ross, because they were tenants in common.

alson. But the instruction given by the judge is in terms which might mislead the jury, and which appear in fact to have misled them. He says that the title was vested in Ross by the deed from Donalson, and could not be devested by the addition of the name of Hackett. Now, this suit was instituted for the whole tract, and the title asserted by Ross was a title to the whole tract. The instruction of the judge might have been understood as informing the jury that the title vested by the deed conformed to the title claimed by Ross. In fact, it was so understood; for the jury found a verdict for the whole tract, and the court gave its judgment for the whole. Now, Ross had no title to more than a moiety, and the judge ought so to have instructed the That one tenant in common may oust his co- jury. For this reason, the judgment is to be tenant and hold in severalty, is not to be ques-reversed, and the cause remanded for a new tioned. But a silent possession, accompanied trial. with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. The principles laid down in Barr v. Gratz (4 Wheat., 213) apply to this case.

Judgment reversed.

JUDGMENT.-This cause came on to be heard on the transcript of the record of the Circuit Court for East Tennessee, and was argued by counsel. On consideration whereof, it is the Neither does it appear to this court that opinion of this court that the Circuit Court there is error in that part of the charge which erred in instructing the jury that the title to the respects the occupation of Cox on the part of whole tract of land in the proceedings mentionRoss. It is, that merely going upon the land ed, and for which judgment was *ren- [*127 will not stop the running of the statute, but dered in the said Circuit Court, was vested in that if an older adverse claimant took act- David Ross, whereas the said court ought to ual possession by building houses, clearing have instructed the jury that only a moiety of 125*] *land, &c., the operation of the statute the said land was vested in him. It is thereof limitations might be thereby suspended. It fore adjudged and ordered, that the judgment has been contended that the statute of Tennes- of the said Circuit Court in this case be, and see can be stopped only by actual suit. This is the same is hereby reversed and annulled. true, when the possession is such as by its con- And it is further ordered, that the said cause be tinuance to constitute a bar. But to make it remanded to the said Circuit Court with direcsuch, it must be peaceable for seven years. tions to issue a venire facias de novo. This is the fact which creates the bar. This fact cannot exist if the person having the better title takes actual possession in pursuance of his right. It is unnecessary to inquire whether the subsequent abandonment of this possession rendered it in this case a nullity, because the point is rendered unimportant by the circumstances that Ross and Hackett were tenants in common. There is, then, no error in the charge so far as respects the statute of limitations.

Cited-9 Wheat. 288; 5 Pet. 440; 3 How. 690; 16

How. 618, 619; 1 McLean, 328; 3 Cranch, C. C. 1303
Cliff. 53.

[PRIZE.]

THE VENUS.

JADEMEROWSKY, Claimant.

A question of proprietary interest, on further proof. Restitution decreed.

by the claimant, it being his fault that defective Captors' costs and expenses ordered to be paid documents were put on board.

But the counsel also requested the judge to charge the jury, that the name of Hackett being signed to the deed from Stockly and Donalson to Ross, since the delivery of said deed, amounts to such an alteration or addition as will vitiate such deed, unless accounted for by the plaintiff. This charge, also, the judge refused to give, but did instruct the jury that the title was vested in Ross by the deed from Donalson, and could not be devested, although there APPEAL from the Circuit Court of Georgia.

might be an alteration or addition in a material part of the said deed, such as the name of Hackett being put to the deed and not proved. There is some ambiguity in this instruction, and there is some doubt in the state of the fact. The counsel for the defendant assumes the fact that the signature of Hackett was affixed to the 126*] deed after its *delivery. This does not appear in the evidence as stated. Nor does it appear whether the signature of Hackett was affixed before or after the deed was registered. It was not proved or registered as to Hackett, and is void as to him. The court is not, however, prepared to say, that it is void as to Don

On further proof, the affidavit of the claimant is indispensably necessary.

This cause was continued for further proof at February term, 1816, (Vide ante, Vol. Ì., p. 112). Owing to various accidents, the further proof was not received until the last term, and the cause was now argued upon the further proof then produced and filed. It consisted of invoices of the cargo, bills of lading, accounts of sale, accounts of disbursements, the original correspondence between the *claim- [*128 ant and Mr. Jones, his agent in London, and the original procuration from the claimant to Mr. Jones, recited in the power given from the latter to Diamond, the supercargo, one of the