Page:United States v. Samperyac.pdf/8

Rh  Rh   after the return of the process that "he was not to be found in the Territory of Arkansas."

On the 28th of October, 1830, Joseph Stewart was permitted to ﬁle his answer, and become a defendant, which was excepted to on the part of the United States, and a bill of exceptions signed and sealed by the court. On the same day, a decree pro confesso was entered against Bernardo Samperyac, he having failed to appear and answer the bill.

The answer of Stewart denied the frauds and forgeries alleged in the bill, and averred that if there was any fraud, corruption, or forgery, he was ignorant of it, and that he bonâ fide purchased the claim, for a valuable consideration, from John J. Borrie, by deed, and had entered the same at the Little Rock land-office, and ought not to be divested of the land so entered; and that the said decree, being for less than ﬁve hundred acres, and not having been appealed from within one year, was ﬁnal and conclusive, and could not be annulled or set aside. The cause was set down for ﬁnal hearing at the next term; and, on motion of the district attorney, it was ordered that he have leave to withdraw from the record ﬁles of the court the original Spanish paper in this case, for the purpose of taking depositions, the Hon. James Woodson Bates, one of the judges, dissenting. The clerk was required to retain a copy of the paper.

On the 26th of January, 1831, the cause came on for final hearing, on bill, answers, exhibits, and testimony; and was argued by counsel until the 1st of February, 1831, and was then submitted, and by the court taken under advisement.

On the 4th of February, 1831, the defendants filed their written motion that the court submit the question of forgery vel non, of the order of survey, to the decision of a jury; and this motion was taken under advisement.

The testimony adduced under the bill of review is sufficiently referred to in the opinion of the majority of the court, and need not here be recapitulated.

On the 7th of February, 1831, the above motion was overruled by the following opinion of the court:—

—We are of opinion that the motion to award