[Ex parte Poultney v. The City of La Fayette et al.] clerk of the court to place the cause upon the rule docket of the court, so that the complainants might proceed in the cause according to the chancery practice." This motion was overruled by the court. It does not appear whether the time asked for by the defendants was given or not; nor is there any further order or proceeding in the case, in the certified copy of the record from the circuit court, filed here by the complainants. An attested copy of a rule of proceeding in civil cases, adopted by the circuit court on the 20th of November, 1837, accompanies the record; but it does not appear that any thing has been done or omitted to be done under this rule, in the suit now in question.

The statements contained in the petition addressed to this Court, not being verified by affidavit, they cannot, under the decisions and practice of the Court, be considered in the matter before us.

We perceive nothing in the proceedings of the circuit court to warrant the rule to show cause which has been asked for in behalf of the complainants. On the contrary, judging from the evidence contained in the record, the conduct of the court in relation to the cause in question, appears to have been strictly conformable to the practice and principles of a court of equity.

The particular object of the motion made by the complainants in the circuit court, is not distinctly stated. It did not ask for any specific order or process, but appears to have been made in opposition to the previous motion of the defendants for time to answer. And, from the terms used in the motion of the complainants, we suppose they desired the court to deny the motion of the defendants, and to allow the complainants to proceed at the rules to be held by the clerk, without any extension of the time to answer.

The rules of chancery practice, mentioned in the motion of the complainants, must, of course, mean the rules prescribed by this Court for the government of the courts of equity of the United States, under the act of congress of May 8, 1792, ch. 137, s. 2; which are undoubtedly obligatory on the circuit courts. But if the order had been made pursuant to the motion, and the case transferred to the rules, under the direction of the clerk, the time asked for by the defendants would, in effect, have been refused; and under the 6th rule of practice prescribed for the circuit courts, the complainants would have been entitled to proceed on their bill as confessed, if the defendants did not appear and file their answer within three months after the day of appearance limited by these rules. We think the

[Ex parte Poultney v. The City of La Fayette et al.]

court did right in refusing this motion. Every court of equity possesses the power to mould its rules in relation to the time and manner of appearing and answering, so as to prevent the rule from working injustice; and it is not only in the power of the court, but it is its duty to exercise a sound discretion upon this subject, and to enlarge the time, whenever it shall appear that the purposes of justice require it. The rules prescribed by this Court do not, and were not intended to deprive the courts of the United States of this well known and necessary power; and the facts stated in the affidavit before referred to, certainly presented a case in which it was proper to exercise it.

In expressing our opinion on the conduct of the court, we do not mean to intimate that a mandamus would have been the proper remedy, if we had found that the court had fallen into error. It is not our purpose, on this occasion, to express any opinion as to the cases in which it would be fit for this Court to exercise such a power. In the evidence exhibited by the complainants, we perceive no just ground of complaint against the decision of the circuit court, and have therefore felt it to be our duty to say so; but at the same time, to refrain from expressing any opinion upon questions which do not belong to the case.

The motion for the rule to show cause why a mandamus should not issue, is therefore overruled.

On motion for a rule on the judges of the circuit court of the United States for the eastern district of Louisiana, to show cause, &c.

On consideration of the motion made in this cause, on a prior day of the present term of this Court, to wit, on Monday, the fifth day of February, A. D. 1838, by Mr. Crittenden, of counsel for the petitioners, for a rule on the judges of the circuit court of the United States for the eastern district of Louisiana, to show cause why a writ of mandamus should not be awarded to them directed, commanding them, the said judges, to make an order remanding the above suit to the rules docket of the said circuit court, so that the petitioners therein may proceed according to chancery practice, and of the arguments of counsel thereupon had; it is now here ordered and adjudged, by this Court, that the said motion be, and the same is hereby overruled.

THE UNITED STATES V. ZEPHANIAH KINGSLEY.

A grant for land in Florida by Governor Coppinger, on condition that the grantee build a mill within a period fixed in the grant, declared to be void; the grantee not having performed the condition, or shown sufficient cause for its non-perform

ance.

Under the Florida treaty, grants of land made before the 24th January, 1818, by his catholic majesty, or by his lawful authorities, stand ratified and confirmed to the same extent that the same grants would be valid if Florida had remained under the dominion of Spain; and the owners of conditional grants, who have been prevented from fulfilling all the conditions of their grants, have time by the treaty extended to them to complete such conditions. That time, as was declared by this Court in Arredondo's case, 6 Peters, 748, began to run in regard to individual rights from the ratification of the treaty; and the treaty declares, if the conditions are not complied with, within the terms limited in the grant, that the grants shall be null and void.

In the construction of the Florida treaty, it is admitted that the United States succeeds to all those equitable obligations which we are to suppose would have influenced his catholic majesty to secure their property to his subjects, and which would have been applied by him in the construction of a conditional grant, to make it absolute; and further, that the United States must maintain the rights of property under it, by applying the laws and customs by which those rights were secured, before Florida was ceded; or by which an inchoate right of property would, by those laws and customs, have been adjudicated by the Spanish authority to have become a perfect right.

The cases decided by the Court relative to grants of land in Florida, reviewed and affirmed.

ON appeal from the superior court of East Florida.

In the district court of East Florida, in April, 1829, Zephaniah Kingsley presented a petition, claiming title to a tract of land situated on a creek emptying into the river St. John; which he asserted was granted to him by Governor Coppinger, on the 20th of November, 1816, while East Florida was held by the crown of Spain.

The petition stated, that in virtue of the grant, the petitioner had, soon after its date, entered and taken possession of the land, and was preparing to build a water saw-mill thereon, according to the condition of the grant; but was deterred therefrom by the disturbed state of that part of the province of East Florida, and the occupancy of the land by some of the tribes of Florida Indians, who were wandering in all directions over the country.

[United States v. Kingsley.]

The grant referred to in the petition, was in the following terms: "Considering the advantage and utility which is to accrue to the province, if that is effected which Don Zephaniah Kingsley proposes to do, it is hereby granted to him, that, without prejudice of a third party, he may build a water saw-mill in that creek, of the river St. John called M'Girt's; under the precise condition, however, that until he builds said mill, this grant will be considered null and void; and when the event takes place, then, in order that he may not suffer by the expensive preparations he is making, he will have the faculty of using the pines comprehended within the square of five miles, which he solicits for the supply of said saw-mill; and no other person will have a right to take any thing from it. Let the corresponding certificate be issued to him from the secretary's office. "COPPINGER."

The district attorney of the United States, for East Florida, filed, at May term, 1829, an answer to the petition of Zephaniah Kingsley, requiring from the court that due proof should be made by the petitioner, of the matters set forth in the petition; and also that the grantee had prepared to build a water saw-mill on the land, as stated in the grant.

The answer also asserts, that the grant was made on the express condition, that, until the grantee built the mill, the grant was to be considered as null and void; and that he had wholly and entirely failed to build the mill, and still fails to build the same.

On the 6th July, 1833, an amended petition was filed, setting forth; that, upon the state and condition of the province of East Florida, east of the St. John's, being made known by the grantees of mill grants, and of the impossibility of complying with the conditions of the grants; governor Coppinger, by a verbal order or decree, made known that in consequence of the continued unsettled and disturbed state of the province, and of the impossibility of the grantees of mill grants complying with the conditions of the same with safety to themselves or their property, that the grantees should not, by a failure to erect their mills, thereby forfeit their title; but that the same should remain valid,, and be exonerated from the compliance of the condition therein named, till the state of the country should be such as that the grantees could, with safety, erect their works.

The amended petition alleged, that the country was in a disturbed and dangerous state, from the date of the petitioner's grant, and for a long time previous, till the transfer of the province from

[United States v. Kingsley.]

Spain to the United States; and that your petitioner could not, with any safety to himself or his property, have erected said mill west of the St. John's, between the time of the date of his grant, and the transfer of the province as aforesaid.

To this amended petition the district attorney answered, and called for proofs of the allegations therein; and he also submitted to the court, that if the part of the province in which the land said to have been granted, had continued in a disturbed situation from Indian hostilities, it had been in that situation when the grant was made; and that this should not be an excuse for the non-compliance with the conditions of the grant. The answer alleged, that from 1821, part of the province has been entirely tranquil, but no attempt to erect the mill has been made.

At July term, 1835, a second amendment to the petition was filed, stating that soon after the issuing of the grant, the petitioner entered and took possession of a tract of the land surveyed to him under the grant, and actually began to build a mill upon it; but was deterred, by the dangerous situation of the country, from completing the same. The answer of the district attorney denied the allegations in this petition, and called for proofs of the same. No evidence was given to sustain the statement in the second amended petition. The assertion, that the uncertainty as to titles to the lands in the province since the transfer by Spain, is denied to be an excuse for the laches or negligence of the grantee.

After the production of written evidence, and the examination of witnesses, the district court gave a decree in favour of the petitioner; confirming to him the quantity of land mentioned in the grant. From this decree, the United States prosecuted an appeal to this Court.

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

Mr. Butler contended that the grant to the appellee was on condition, and the condition had not been complied with. The language of the grant is explicit; and no title to the land could be derived under it, until the terms were complied with: "Until he builds said mill, this grant will be considered null and void; and when that event takes place, then in order that he may not suffer by the expensive preparations he is making, he will have the faculty of using the