the transportation of tallow and grease were | found to be insufficient, as the casks were frequently half empty on their arrival. The commerce in it was checked for some years, and not resumed until the shippers put it into square boxes, lined with tin, and the article is now carried without loss. And here we will remark, that a distinguished gentleman, thoroughly acquainted with the commerce of our country and its productions, and with its great lard production from the fat of the hog, has made a calculation of the deterioration of the article and the loss of it by leakage from the barrels and casks in which it is now shipped, and his result is, if we would change it for square boxes, lined with tin, that the cost of them would be a saving of the loss now sustained by barreling it.

We have now shown that the cause of the 166*] leakage of lard is *its liquefaction under temperatures higher than those at which it will solidify when not deficient in stearine. One legal consequence from that fact is, that shippers of that article should be considered as doing so very much as to leakage at their own risk when it is in a liquid state, however that may have been caused, whether from fire or the heat of the sun, and knowing, too, that it was to be carried by sea at a time from places where there was the higher ranges of heat, through latitudes where the heat would not be less, until the ship had made more than three fourths of her passage. Such was the case in this instance. When the lard was shipped, the thermometer had indicated for several days, and continued until the ship sailed, a heat of 97°; the ship itself had become heated by it. Her passage was made in the heat of the Gulf Stream until she made the capes of the Delaware, and the witnesses described the heat of the hold as unendurable upon her arrival in New York.

casks were fully wooden bound, but saw them leaking at bilge and at head; coopered four hundred of them. Ward, the city weigher, and who weighed several hundred casks of this shipment, says that they leaked largely; leakage was from loose hoops. Dibble, another weigher of twelve years' experience in the article of lard, says the lard was in a liquid state, like oil. Wright, who was present all the time when the ship was discharged, gives an account of the stowing of the shipment; says the packages or barrels were slack. Samuel Candler, marine surveyor, surveyed the cargo in August, 1854; made seven surveys on cargo and one on hatch; saw the lard when on board of the ship; says it was stowed in the after lower hold in four or five tiers on bilge, and cantling in ordinary way and best; bilge and bilge stowing not so well; went below; it was very hot there; barrels looked fair, but slack; the staves were shrunk; looked all alike; top casks leaked as well as those on the bottom tier; attributes the great loss to great heat and shrinking of the barrels; has surveyed a great many ships laden with lard in hot weather; this cargo could not have been stowed better; recollects more of this cargo because there was so much leakage; nothing stood on the casks; or on the top tier of them, as is afterwards explained; surveyed ship; she had the appearance of having encountered bad weather. Francis J. Gerean, who has been accustomed for thirty years with stowing cargoes, says: I coopered this cargo for libelants, Woodruff & Henning; when the cargo was discharging, two coopers under his direction, one at gangway on deck, the other in the hold of the ship; he saw the lard in the hold before delivered; the hoops were very loose, and the barrels were leaking from sides and heads; intensely hot below; considerable hotter than on deck; leakage from shringing of packages; the lard was liquid; We have still to show what were the effects that tends to shrink; staves and hoops become of the liquid lard upon the barrels in which it loose; only chime hoops were nailed; barrels was, and that we shall do briefly by the testi- were well stowed; does not think it possible to mony of several witnesses, and from what we stow better; ground tier was damaged, as well all know to be the additional pressure of an as he judged; bilge of barrels did not leak; article upon a barrel when liquefied by heat. *no barrel rested on a single barrel, [*168 The pressure from liquid lard is an expansion but on others. Fisher, a large dealer in lard, of its component constituents by heat into a grease and tallow, and who has received them larger bulk than it occupies when solidified, at all temperatures of weather, says lard and its elastic pressure distends or swells the brought in vessels in hot weather will naturalbarrel which contains it, until the hoops which ly leak ten pounds out of a package; lard of bind it are slackened, and its staves are start- reasonable quality, in good packages, will leak ed; just as it would be in a barrel containing about the same as oil; thinks putting liquid any other fluid expanded by heat or fermenta- lard into barrels will not produce leakage as tion. The consequences must be a diminution much as pressure of the barrels upon each othof the liquid by an increased leakage and evap-er, but stores lard in cellar three to five tiers. oration. Now, it so happens that the scientific explanation of the loss of the lard in this instance is verified by the experience of the libelants' and respondents' witnesses. Benzell, a cooper of forty years' experience in New York, in coopering casks of lard from New OrThere is no testimony in the case impeachleans to New York, and who coopered this caring the skill and proper management of the go upon its arrival, says the casks were of a good quality, except being slack—that is, hoops livery of the lard there, or that there was any ship on the passage to New York, or in the destarted: hoops were loose upon the casks; does part of her cargo of a nature to increase the not think there is any quality in lard to injure heat of the ship, or to liquefy the lard, or to casks. except it will, when liquid, tend alter or shrink the barrels, though the ship's 167] to shrink them; it requires a great heat, exposed as she had been to the rays of deal of care in such a case: pressure increases the sun in New Orleans, was higher than that the difficulty from heat, conduces to press up-temperature at which lard will solidify; and on the joints, and produces leakage; these it. consequently, continued liquid, from the

Several other witnesses in New Orleans concur in stating that it was very hot weather when the lard was shipped, and that when shipped it was in a liquid state. Others, uncontradicted, testify that it was liquid when the vessel arrived in New York.

179*] *THE CITY OF CARONDELET, Piff. quired to do, by any court in any suit for the

surveyor of the United States, and approved | question, so far as the said land lies within by the Surveyor-General, has any effect as a the said United States survey of 1821." United States survey to devest the title of the This instruction was refused. The court inhabitants of Carondelet to lands granted to below erred in refusing to give this instruction. them by the Act of Congress of 1812, without By the Act of 29th April, 1816, p. 278, Pub. any such condition of survey. Land Laws, &c., it was enacted that the Surveyor of Illinois and Missouri "shall cause to be surveyed the lands in the said Territories, the claims to which have been, or hereafter may be, confirmed by any Act of Congress, which have not been already surveyed according to law, &c."

The out-boundary survey directed by the 1st section of the Act of 1812, to be made by the principal deputy-surveyor of the Territory, "so as to include the out-lots, common field lots, and commons, to the villages respectively belonging," has been held, by the Supreme Court of Missouri, not to be conclusive against a claimant of a common field lot outside of such survey.

Gurno v. Janis, 6 Mo. 330; Page v. Scheibel, 11 Mo. 167; Soulard v. Clark, 19 Mo. 570; Strother v. Lucas, 12 Pet. 410; Guitard v. Stoddard, 16 How. 494; Schultz v. Lindell, 24 Mo. 567.

The court below erred in holding that the making and delivery of Brown's survey in 1834 for commons of Carondelet, as a satisfaction of its claim under the Act of 1812, would preclude the plaintiff from recovering the land outside of the survey and within the boundaries of the confirmation. The claim referred to by the court below is that of 1806, made before the old Board of Commissioners, and the presentation of that claim does not appear to have been authorized by the inhabitants of Carondelet. But if it had been fully authorized and formally made, it could in nowise affect the limit, or control the extent or boundaries of the confirmation by the Act of Congress of 1812. That Act gives to the inhabitants of Carondelet all that was claimed or possessed by it prior to Dec. 20, 1803, not all that it claimed before the Board of Commissioners in 1806.

But Brown's survey of 1834, under which the right to devest the title of plaintiff is claimed, was not an authorized survey, and was illegal and fraudulent. It was not made in accordance with the Act of 26th May, 1824, which required "the Surveyor-General to proceed, under the instructions of the Commissioner of the General Land Office, to survey the commons belonging to the towns or villages, according to their respective claims and confirmations." P. 398, part 1, Pub. Lands, and Laws, &c. There were no instructions from the Commissioner from this survey of 1834; but it was made under illegal instructions from the Surveyor-General, who ordered Brown to retrace the field notes of a pretended survey of E. Rector, which had never been approved, recorded or regarded in the office as authentic or offi cial, which was a loose memorandum without date, without instructions, without oaths of chain carriers or axe men, and which would not close as a survey by one fourth of a mile. The plaintiff asked the court below to declare the law to be that "if there was a United States survey of the commons of Carondelet | made in 1821, and platted in the SurveyorGeneral's office, and a copy thereof filed in the office of the Register of the United States, and if there was never any appeal from said survey, and if the same remained of record from 1821 until the year 1834, and still remains of record, then the plaintiff is not estopped by the survey of Brown for the Commons of Carondelet of 1834, from recovering the land in

In 1821, this Act of Congress was in full force, and the survey of the commons as a confirmed claim, was directly authorized by law, and when made and approved, such survey became binding upon the United States. The evidence that this survey was duly made is conclusive. The United States township plats. certified from the United States Register's office at St. Louis, had been furnished to that officer by the Surveyor-General, William Rector, and was one of the three original plats made by the deputy-surveyors of the United States under proper instructions representing the surveys of the commons of St. Louis and of Carondelet, in substantial accordance with the ancient Spanish possession.

If the surveys of 1821 were valid, E. Rector's field notes were void and the whole scheme, to take away from Carondelet its north commons, by returning discredited field notes, would fail.

The existence of the plats of record of 1821, as approved surveys of the United States, would prevent Brown's survey of 1834, under legal or illegal instructions, from being binding or conclusive as against the United States. And when the fraudulent survey of 1834 was disapproved in 1839 and 1840, this old and valid survey of 1821 remained in force, and there was no occasion for Carondelet to appeal to the Land Department against the void survey of 1834.

If acquiescence of the survey of 1834, with its infirmitics of fraud, illegality and nullity, operates to devest a title granted in presenti by the Act of 1812, what force and effect by the same rule should be given to the legal recorded survey of 1821, standing for thirty-four years in full force at the time this suit was brought.

But the court below held Carondelet estopped, under its construction of the laws of the United States, from asserting title to the land in controversy.

This point assumes the title in Carondelet, and asserts that good faith or some rule of law forbids it to set it up.

As between Carondelet and St. Louis, the court below did not find an estoppel, except through the United States by virtue of the survey of Brown in 1834, and the Act of Carondelet under it. Indeed, it was impossible that it should so find, for Carondelet resisted, from first to last, the seizure of its property, as fully and efficiently as it was able to resist.

And it is difficult to perceive a moment of time when the United States offered and Carondelet accepted the survey of 1834. It was not an approved survey until March, 1855, a month after this suit was brought. To say that Carondelet was estopped by the action of the Secretary of the Interior on the matter, then sub judice in our courts of law, is observed. Carondelet, at the moment this ac

tion, which is to estop it, took place, was prosecuting its title before a court of justice, and it has not for a moment ceased or delayed its prosecution in consequence of the action of the Secretary of the Interior, but has continued and still continues to resist and repel it.

If the United States has forever power over these titles to enlarge, diminish, destroy, or transfer them, without the consent of the grantee, be it so. It is, in effect, so decided in this case by the court below; but let it not be called by a false name. It is the mere exercise of power, not estoppel; and such is the decision in deed, though not in name. It arises out of "the Statutes relating to this subject," and not out of any principle of the common law. The error of the court below is in making the survey of 1834 bar the title of Carondelet to lands within its well defined boundaries, defined by lines and corner stone, by fences, and by regular survey in 1821. Jourdan v. Banalt, 4 How. 179.

It bears just such ear marks of an approved survey, as surveys made at that time do bear. The Act of 16th of April, 1816, authorized such a survey to be made. It is objected to it, that is unsworn and not approved. The testimony of Milburn shows in that these particulars it is like all other surveys made at that time and for a long time afterwards, and always used and treated as approved surveys to this hour. It was not until some years after that time that a better practice was introduced. 2d. As to Brown's survey.

I do not regard it as of any great importance to this case, whether Rector's was a legal and aprpoved survey or not. Brown's survey was made from the 11th to the 17th of March, 1834, and approved by the Surveyor-General on the 29th of July, 1834.

Brown's survey was accepted by Carondelet, for

1st. It never protested against the survey or made any objection to it.

2d. For fifteen years Carondelet did not even ask for an extension of that survey.

3d. When Carondelet asked for an extension, it asked not that it should be set aside but extended, carefully abstaining from anything that would impair the validity of the survey as made.

4th. Carondelet in 1848, in its petition to Congress said, under its corporate seal, that it had accepted it.

No matter how the court held the title barred by the survey of 1834, whether by direct annulment or by the expedient of an estoppel, it is the survey of 1834 which is held to destroy the title. And this survey of 1834 was not gotten up in the regular course of things. It was irregular and illegal. It purports to be not an original survey, but the retracing and re-establishing a survey of Elias Rector, without date and without instructions. It was made up of mere loose field notes, not signed, sworn to, approved, or platted, having none of the formalities of a regular survey, and so miserably exc-accept it. cuted, that the lines did not close by a quarter of a mile. The survey by Brown in 1821 is conclusive that the notes of E. Rector were disregarded by the Surveyor-General.

Messrs. M. Blair, Gardenhire and John R. Shepley, for defendant in error:

If this case is subject to revision under this writ, it must be affirmed, for the principle of estoppel as applied in this case and by which the courts of Missouri disposed of it, has been sanctioned by this court.

Menard v. Massey, 8 How. 293; Guitard v. Stoddard, 16 How. 512; Bryan v. Forsyth, 19 How. 334.

The 1st section of the Act of 1812 (1 Stat. at L. p. 750) required the commons to be located by survey, by expressly requiring a survey to which such location was a necessary preliminary. All the reasoning, therefore, on which this court held in West v. Cochran, 17 How. 403, that the government reserved the power to locate under the Act of 1807, applied here and with much greater force, because the case of Dent v. Bingham, 8 Mo. 579, shows that the grant, without such survey, is void for uncertainty. The 7th section of the Act of 1807, required that the claims granted by the Board, not previously surveyed, should be surveyed and the court, on this, held that Congress "did not intend that a final legal title, as against the United States, should be made to vague grants, until their bounds should be ascertained by the means there designated, and the particular tract defined by survey."

The surveys made by Rector about 1817, and by Brown in 1834, are valid, legal and approved surveys of the claim of Carondelet for

common.

1st. As to Rector's survey.

5th. Even the Ordinance of Dec. 31, 1857, which was ruled as not evidence, does, in fact,

6th. As far as this cause is concerned, if accepted at all, it makes no difference when it was accepted, as long as it was accepted before the trial.

As to the legality of the survey of commons and the binding effect of a survey when accepted, see Mackay v. Dillon, 4 How. 421; Les Bois v. Bramell, 4 How. 456; Menard v. Massey, 8 How. 301; West v. Cochran, 17 How. 415; Willot v. Sandford, 19 How. 82; Kissell v. The Schools, 18 How. 25; Jourdan v. Barrett, 4 How. 169; Bissell v. Penrose, 8 How. 317; Guitard v. Stoddard, 16 How. 494; Stanford v. Taylor, 18 How. 412.

The map, introduced in evidence by plaintiff and dated May 14, 1821, is no survey of the commons of Carondelet.

(a) It has never been treated as such in the Surveyor-General's office.

(b) It has never been once alluded to by any Surveyor-General, Commissioner of the Land Office, Solicitor, or Secretary of the Interior, in any of their communications.

(c) No certificate can ever be obtained for it as an approved survey of Carondelet. Even if it were not apparent on its face that the commons of St. Louis and Carondelet were not undertaken to be laid down as surveyed, as well might it be contended that the township plat of T. 45 was an approved survey of all the tracts laid down upon it competent to be used as evidence to prove an approved survey of an individual tract, as this map.

(d) It is just as good a survey of the commons of St. Louis as of Carondelet, a thing which will hardly be maintained.

(e) It is apparent on its face that it is no survey of either the commons of St. Louis or Carondelet. The lines are merely treed and

the land lying within them sectionized. The | States, and the decision is against the title lines were loosely laid down where they would set up and claimed under the statute, the case probably come, so as to guide the Register and may be re-examined in this court, and the deReceiver, that they might not allow precmp- cision reversed or affirmed. tion or sales within those lines. From that plat no one can tell exactly where the lines run. The evidence of a legal United States survey is not a mere plat, without any written description of the land by metes and bounds.